The law on terror

The aim of the recent series of events at the New York Public Library was, in the words of Paul Holdengraber, director of public programs, ‘to make the lions roar’. Live from the NYPL has presented some A-list names on a range of diverse subjects (1).

On 20 September 2005, Richard Posner and Geoffrey Stone debated the Patriot Act.
Posner is a judge on the US Seventh Circuit Court of Appeals and a regular commentator on a variety of issues (2). He has written over 40 books. Stone is chief editor of a 15-volume series, Inalienable Rights (to be published between 2006 and 2010), among other works. He won the Robert F Kennedy Book Award for Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004). Both are experts on constitutional law and professors at the University of Chicago Law School.

Stone kicked off by stating that the Patriot Act, although widely criticised in the public, is tame when compared with other historical precedents, from Abraham Lincoln suspending Habeas Corpus (perhaps unconstitutionally), to Woodrow Wilson’s measures on immigration, to the infamous rounding up of Japanese-born Americans under Roosevelt. (‘A Jap’s a Jap’, muttered Lt Gen John DeWitt as the ink dried on the evacuation orders in 1942, but when 120,000 persons of Japanese ancestry asked the Supreme Court why, DeWitt spoke disingenuously of ‘military necessity’).

Stone, in true attorney form, accused the Patriot Act of being a ‘flawed piece of legislation’; and while the Fourth Amendment is not actually applicable in many instances (for example, with regard to access to bank records – the Supreme Court ruled that as one discloses these to strangers (bank tellers) then a ‘disclosed indifference’ to scrutiny has been declared), Stone is concerned with the tracking of citizens’ library activity and Amazon purchases, as this is ‘related more to the First Amendment’.

Posner dismissed the notion that Section 215 or indeed the Patriot Act itself is particularly controversial. He argued that the real problem is the perception of crime and how it is investigated – once it has been committed – and this is the paradigm that has paralysed the state and security services. He explained that with terrorists ‘there is a completely different scope of enquiry. We don’t know where they are, we don’t know who they are or what they are planning….’ – although of course we are, he continued, extremely concerned with preventing the act. His point was that the net had to be spread wider as one is looking for a ‘needle in a haystack’, and that in various records, including libraries and bookstores, ‘the information possessed by individuals may be innocuous, although, collectively taken, may help with the mosaic of information’.

Posner went on to say that, sure, there would be a dampening of free speech and political freedom – but hey, that’s the cost and…wait for it (because if you know anything about Posner the lawyer, he can’t help himself from borrowing from shoddy economists) there is a benefit. Ah! So, depending on the benefit discerned in preventing terrorism (which is clearly very difficult to do by all accounts – one look at Israel should make that clear to anyone, qualified lawyer or not), we should relinquish our liberties, which is a cost, say, like forgoing some consumables for a while. He went on to explain how civil libertarians ‘don’t really understand the threats…and are only concerned with the costs of curtailment in civil liberties’.

Stone agreed with Posner that one wouldn’t want libertarians making the rules, and then went on to point out that in the 1950s and 60s the FBI engaged in covert action to prevent political organisations from pursuing politics, not preventing crimes. Posner countered by arguing that the ‘extremists’ have hijacked political debate in the USA, including organisations such as the American Civil Liberties Union (ACLU), which is ‘obsessed with trivia…and is very unimportant with regard to the population’. Posner claimed that ‘the level of civil liberties that is desirable…changes with the changing character of threats’ (3).

Posner complained, in fact, that the problem in US politics is ‘a lack of a centre’. The fact that all parties agreed to the Patriot Act, and seem to agree pretty much on all key issues and events, does not seem to give him pause for thought. This is what is so frustrating about a ‘debate’ of this kind. It is presented by lawyers, who empirically spell out various legal precedents and clauses, yet offer a banal and tokenistic assessment of the contemporary landscape. The fact that US politics is increasingly perceived as being, and indeed is, a series of technical managerial acts is a sad indictment to the aspiration of a democratic public.

Perhaps worse still, however, is the shared view by most commentators that we need to reorganise our lives to prevent acts of terror. Both these speakers seemed to agree that ‘hate speech’ is a problem, and both disagreed when I contributed that free speech meant that it was unconditional, regardless of how unpalatable or offensive. Further, the conflation of speech and action denigrates the idea of a rational and conscious human citizen, who can discuss, reflect and consider all sorts of things but won’t go and ‘act them out’ like some kind of zombie.

Posner conceded, when questioned whether the Patriot Act would increase security, that he ‘guessed not’. While Stone argued for increasing border controls, screening individuals and law enforcement generally, he suggested he did not agree with interfering further with civil liberties to reduce crime or terrorism. The problem is, however, that once society has accepted that we are permanently at risk from terror, the discussion becomes a pragmatic one about the best way to execute infringement measures – not whether they are required or not. This can be seen by the silence of former critics of surveillance cameras in New York: journalists such as William Finnegan of the New Yorker, who was ‘opposed to the Orwellian idea of CCTV’, has had cause to reconsider since London 7/7 and 21/7, as he admitted in a recent debate with New York police commissioner Ray Kelly (4).

In the end, I am not sure if the stone lions will indeed roar: the speakers talked for far too long and unfortunately there was not enough time for a real debate. But I did feel like screaming once or twice. Perhaps that, in the end, means Mr Holdengraber is succeeding in his wish.

Alan Miller is co-director of the NY Salon in New York. The Salon recently hosted ‘Reflections on the Future: Thinking politically in the Twenty-First Century’ at the Graduate Center, CUNY, New York City. For more information, visit the Salon website here.

(1) New York Public Library

(2) The Becker-Posner Blog

(3) Judge Richard Posner discusses his position on law, pragmatism and democracy. See here

(4) Defending New York City, The New Yorker Festival, One Times Square, 23 September 2005