On the Bookshelf - Judge Posner and 9/11
posted by:Marc Rotenberg // 10:12 PM // July 19, 2005 // Surveillance and social sorting
For a person who has struggled a bit with the demands of acadamic writing, contemplating the work of Judge Richard Posner is a bit like imagining that one's notepaper doodles are going to end up in the Louvre. It isn't going to happen. He is in one world, the rest of us in another. Judge Posner can probably write faster than most people can read. And he probably writes as frequently as most people breathe.
But among all of Judge Posner's writings, one of the most provocative was surely his review of the 9-11 Commission report for the New York Times Book Review. Posner, who obviously ignores the political memos and talking points that are widely circulated in Washington in case anyone forgets what to say when there is dead air time, put forward the radical views that (1) the 9-11 terrorists outsmarted us, (2) terrorists will outsmart us in the future, and (3) the radical restructuring of the US intelligence community (which is to say, the consolidation and centralization of decisionmaking authority) may not have been the smartest move if our concern is with a nimble and determined enemy.
I haven't finished Posner's book, which elaborates on the NY Times essay, but I was thinking about it last week when I attended a briefing for the new Homeland Security Secretary Michael Chertoff at the Ronald Reagan building in downtown Washington (surrounded by the national security community and various federal contractors, I had a Hunter Thompson moment and joked with the FBI field agents seated next to me. Btw, a Blackberry 7290 appears to be standard issue for those defending the homeland from foreign threats and charges for extra minutes.)
Posner is, of course, also the father of the law of economics movement (to every social problem, there is an equation that defines risk, reward, cost and benefit, and whether to split 5's if the dealer is showing an 8. Answer: Don't do it). And to Posner, and apparantly to the new Secretary of Homeland Security, the problem of defending against terrorists comes down to ecomomic analysis. Sure, 40 people might die in a subway station, but subway cars don't fly into office buildings. So, we should be more concerned about security for airplanes than for the metro. I won't go into all the federal/state politics that may also be at issue, but needless to say, the states are on their on when it comes to future terrorist threats.
I'm not a huge fan of Posner. He sure can write a lot. And he has said some interesting things about privacy. (In a 1978 law review article, he wrote about mailing lists, Coase, and opt-in v. opt-out. In the Economic of Justice (1982), he gave us a nice instrumental argument for confidentiality. And he's written some remarkable privacy opinions as a federal appellate judge in the last few years.) But the problem with economics is that everything is up for sale. Including individual rights. Let's say we had an equation which said that we could increase public safety by 10% if we diminished personal freedom by 10%. How much freedom would you trade? What if you could gain a 10% increase in safety with only a 5% sacrifice in personal freedom? If you accept my premise that you can trade freedom for safety, I suspect there is some number where you would say "ok." But what if I suggest that your freedom helps ensure your safety? That open government, privacy protection, respect for the rights of the individual actually promotes public safety? What become of our economic analysis? I'll say more about this in a later post, but consider the lessons we might draw from the terrible tragedy in London. The most surveilled city in the world was also the site of one of the most significant terrorist attacks that ever occurred. Is surveillance the solution?
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