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Bloggingheads
01-03-2008, 12:58 AM

TwinSwords
01-03-2008, 01:34 AM
Great diavlog by two great minds, even if Posner's totally casual attitude about the death of American values does scare my socks off. He's so calm, as he looks you in the eye and tells you, in effect, that the America we have always known is gone forever.

I just want Jack Balkin to know that when I get elected president in 2012, I will be appointing him as Chief Justice of the Supreme Court. ;-)

abaris
01-03-2008, 06:48 AM
What are those Chicago boyz smoking? Fascism was also efficient (in the short term).

bjkeefe
01-03-2008, 09:44 AM
... but I'm not sure, since Jack gave him little chance to expand upon any points. I agree with much of what Jack said, but, as I've said before, his interruptions and long-windedness irritate me. Calling what I just watched a conversation is stretching the definition to the point of tearing.

To the degree that I did understand Eric's philosophy, I was troubled by his apparent rosy expectations of government's sense of responsibility and the ability of the democratic process to keep a misbehaving government in check. There's an excessive tendency to deify the authors of the Constitution whenever we're discussing issues like civil liberties and limiting government authority, but one thing I will always admire about them is their skepticism regarding the self-restraint of those in power. Offering as evidence the idea that George W. Bush didn't use the Patriot Act to go all Nixon on his enemies is hardly reassuring. For one thing, it's not clear that he hasn't, and for another, it is no guarantee that future administrations won't. It's easy to imagine Hillary Clinton or Rudy Giuliani being tempted, at the very least.

Eric used the idea that we give cops guns as an example of power granted but not abused. This one didn't fly with me. Just because there aren't frequent cases of cops firing into crowds of demonstrators, there's no question that a non-trivial number of innocent people are shot by the police every year. The fact that pretty much everyone knows what is meant by the phrase "throw-down gun" speaks volumes.

The idea that Eric would write a book, now, in support of the idea of enhancing presidential powers and in favor of the executive branch as the best part of government to be given increased surveillance powers seems an awful lot like rationalization after the fact. This, from the Amazon description of the book, is particularly chilling (emph. added):

They [Posner and Vermeule] emphasize the virtues of unilateral executive actions and argue for making extensive powers available to the executive as warranted. The judiciary should neither second-guess security policy nor interfere on constitutional grounds.

I haven't read the book, so I'll leave it at this: arguments in favor of crippling the checks and balances on the executive branch strike me as a greater threat to America than do the terrorists.

I'm not a Pollyanna about the world we live in. I agree that surveillance, and maybe even increased surveillance, is a price we're going to have to pay to address the current realities of readily accessible weaponry and the existence of people who feel no compunction about using it. I just think it's too easy to reach for the security blanket of Big Brother, and I believe we can get the job done without surrendering yet more authority to the executive branch. There has to be accountability and oversight, there have to be mechanisms for addressing the inevitable false detections, and there's no other way to ensure these except by providing Congress and the judiciary with real leashes.

Praedor
01-03-2008, 01:09 PM
Rights are NOT a service the government provides. They are not something that the government allows. They are inviolate and are what the government serves. The Constitution and Bill of Rights isn't about giving government power, it is all about limiting the government's power in the Founding Documents. These documents are not limits of what the people can do, but rather documents that strictly limit what government can do...and you cannot simply legislate rights away. ALL attempts to do so are, by definition, unconstitutional.

Oh, and no thank you. I am not hiding under my bed in fear. I do NOT need nor want government or any subcontractors to protect me from big, bad poor people in the 3rd World. If it is between being threatened with being blown up in a terrorist attack or losing my absolute right to privacy, I'll that the threat of being blown up any day. I can handle the necessary protection part myself if need be.

Eric, in particular, has WAY too much faith in government and completely ignores the objective facts of abuse of civil liberty that has been the entirety of the Bush Administration since day 1. It isn't a matter of if the government will misuse all the data being collected, it already has and is attempting to misuse it even more. Finally, it is absolutely true that the government has, and will, use any and all private information they can get on US citizens to increase the power of government and quash dissent. That is what government DO with authority and it is precisely what the Founders were seeking to protect against with the Constitution and Bill of Rights.

ohcomeon
01-03-2008, 01:13 PM
I am not going to watch it. Sadly, I didn't watch yesterday either. I just can't listen to one more person telling me to be afraid, give up my civil liberties to keep them, take off my shoes and give up my chapstick at the airport, and watch out for politicians that don't wear flag pins.

Good grief - On new year's eve we have Mickey telling us that the Mexicans are coming to take back the country. (It is very clever of the Mexican government to propagandize their children in school by telling them their side of what happened when we took parts of their country by force. Step two is obviously keeping the economy in such terrible shape that thousands of hungry people will sneak into the United States and get jobs with low pay and no benefits. The next step in this diablolical plan is unclear to me but I know it has something to do with (a.) id cards - which real Americans should have and Mexicans shouldn't - and (b.)children's health care - which only children smart enough to be born to responsible parents should have.)

While I appreciate all these Very Serious and Mature People telling me all the people I should fear, I have made a resolution that in 2008 I will not be a serious person if that means being so afraid that I must give up my dignity, privacy, and unalienable rights in the process.

Consumatopia
01-03-2008, 03:29 PM
Civil libertarians would be making a huge mistake to ignore Posner's ideas--there's a logical coherence behind them that's missing from most defenses of executive power, such that reading his argument actually enables you to make a better argument against executive power.

Take this paper The Credible Executive (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931501) Posner and Vermeule wrote.

We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly the creation of domestic coalitions of the willing; the related tactic of counter-partisanship, or choosing policies that run against the preferences of the president's own party; commitments to multilateral action in foreign policy; increasing the transparency of the executive's decisionmaking processes; and a regime of strict liability for executive abuses.

and

For one thing, the very availability of these mechanisms, once generally known, indirectly provides the public with information even if they are not used, and indeed because they are not used. The failure to invite members of the other political party, or foreign nations, to participate in a crucial decision of foreign policy might cause voters to increase their skepticism about executive motivations.

Although they don't appear to intend it as such, these words offer an extremely damning view of the Bush Administration's grab for executive power. Bush is doing hardly anything at all to signal himself as a well-intentioned executive. He may not be harassing political opponents (though, like Balkin points out, the U.S. Attorneys incident and surveillance of the Muslim community vaguely resemble that), but he does seem to withhold information by which we might judge the effectiveness, competence and rationality of his decisions. He witholds this information not merely from the people, but apparently from Congressional committees and secret courts capable of viewing classified material securely. Granting Bush further powers to restrict information may not result in a loss of "political competition", but it might result in a decrease in effectiveness of our national security operations. (Consider that more Americans have died as a result of the decision to invade Iraq than as a result of the 9/11 terror attacks). Bush has given us a world in which opinions are free, but facts are restricted.

If executives would only be trusted in so far as they proved themselves trustworthy, then that would represent a fantastic improvement in both government integrity and national security. If the social norms and implicit rules of the game were changed such that agreement to checks on your own power was a necessary component of acquiring more power, both the nation and the entire world would be much safer (see Nonzero, of course).

The other reason Posner is worth reading is that he makes clear something I hadn't noticed before--the link between executive power and free markets. By grounding his arguments in public choice theory (something that didn't really come out in this diavlog) impatience with the rule of law and love for competitive markets become part of a seamless garment that conservatives aren't usually so open about. In the liberal world view, people of good will reach some sort of Pareto-optimum compromise by rational argument. In public choice theory this is impossible--everyone is out to screw the other guy so legislatures, arguments, debates, and reason are just a sleight of hand that allows legislators and bureaucrats to defraud the public. PC theorists hate legislatures--they love single unitary executives that can be held responsible for success or failure--whether by buying or selling the stock of a corporations led by a single unitary CEO, or by dumping or retaining the POTUS depending on the answer to Reagan's immortal "are you better now than you were four years ago" question. It's a world of executives, in which business and government are just black boxes, the internal workings of which we're better off not knowing.

As appalling as I find this, at least this is in utilitarian rather than the traditionalist terms that "strict interpretationists" employ with much cognitive dissonance.

dp
01-03-2008, 04:10 PM
Eric Posner: Remarkably na´ve about human nature. Those in power respond differently to the "popular demand" for security and the "popular demand" for liberty. Governments have a natural tendency to enhance their power. Demand for security serves that tendency, demand for liberty does just the opposite. Which demand do you think governments are more inclined to accommodate (especially when the government's responses are not fully transparent)? Posner also simplistically assumes that "popular demand" is an independent force: the government responds to it, but has no ability to control it. He ignores the government's power to manipulate popular demand in favor of security over liberty. Successful war-and-fear-mongering neutralizes the opposition and undermines the "political competition" Posner banks on.

Jack Balkin: Much too fond of his own voice.

Nevertheless, both are serious thinkers who put to shame others who reduce profound constitutional issues to ill-informed soundbites and one-liners (e.g., D. Lithwick).

Namazu
01-03-2008, 04:15 PM
Posner's totally casual attitude about the death of American values does scare my socks off
Instead of assuming we care about your feelings, why not point to some specific passage--one where Jack doesn't interrupt Eric so much to obscure the point he's trying to make.

bjkeefe
01-03-2008, 05:09 PM
ohc:

Nice essay and an admirable resolution.

newarchipelago
01-04-2008, 02:03 AM
Ah, Mr. Posner does make me miss my time as an undergrad at Chicago. And though I find myself siding more, perhaps, with Mr. Balkin's argument, his disruptive and rude badgering reminds me how despicable those Ivies can be.

garbagecowboy
01-04-2008, 02:10 AM
_______________

swamymaximu
01-04-2008, 09:25 PM
monovlog ?

That was amazing... do people really lack self-awareness to that degree?

I stopped watching halfway through.

joey
01-11-2008, 02:38 AM
I think Posner made an interesting point with the EPA agency's decision making- we choose to allow a certain amount of death in our society in many ways- the setting of speed limits on roads- not wanting to pay for extra policing in the crime ridden areas- not wanting to pay for free yearly cancer checks on all members of society- but we do pay to fix potholes (which saves lives). we do mandate a special service regimen for jet engines that transport the public (which costs money). Our society is constantly weighing life and death, and making decisions about how much death is acceptable based on things like cost (if every car had an extra twenty grand in safety features how many thousands of lives would be saved every year?), ease of use ( we would rather drive 65 on the highways and have some extra people die than go slower)- the extra death is not enough to bother the majority of us. SO MY QUESTION TO JACK AND THOSE WHO APPLESAUCE HIS POSITION, which, ahem, I think his position is that even a few hundred mistaken deportations, or five year long stays in prison without being charged, or any of the other abridgments of what was previously our due process are essentially too much and really bad, and its just the start of us really getting clamped. Im about to get to my question- just about, but. We allow thousands of our own citizens to spend years and decades and lifetimes in prison because we as a society don't want to pay for truly excellent legal representation for those who can't afford it. its just to expensive. But, the suffering, rape, fear, etc in our mainland prisons is probably much worse than the highly controlled environment of Guantanamo. At the same time our own citizens that suffer this fate encouraged of poverty definitly have no plans of mass murder, anthrax, etc.- they are suffering unfairly and they don't pose a major threat to our society. we allow them to suffer in this way. Is this not an issue of civil liberties even more serious than unwarranted wiretapping of posible potential terrorist suspects?, or the deportation of non citizens who perhaps did nothing more than express some raw sentiment towards America while they were on the phone?. This is what I'm getting at- when was the last time you saw a story about heinous sexual abuse in our own prisons splashed across the news for days, and weeks, in excruciating detail?- are we really responding to the most important issues of our civil liberties (our common life) or are we responding to what's being fed to us? Maybe the lead paint we carelessly let slip by on our childrens toys has a deeper impact on our civil liberties (life, liberty and the pursuit of happiness)--- what about a poor bastard rotting in prison while a rich one goes free, or a brain damaged child, or someone who lost their family because we didn't want to spend an extra ten minutes on the drive to work, or someone susceptible to cancer who is surrounded by products containing mild carcinogens that mostly don't affect the majority of us. I feel like we're making this big deal about our "principles" that we really mouth about, and, we will gladly impale people on these words- "freedom" "liberty" "democracy" we will heartily burn them at the stake. But, - this stuff has been pounded into our heads since day one and we respond like a bunch of monkeys- look how Bush and his people have used these words to feed us a war- and our society ate it up. the real loss of civil liberties is for those hundreds of thousands of dead bastards. Are the Afgan women really loving their "freedom" right now?- maybe their more concerned with the civil liberties (like the right to live a normal life) of their sons and husbands. People start talking about liberty and freedom and we roll over- maybe we should start talking about "health" and "strength" and "thoughts". I'd like to dedicate this note to Jack, whose conversational technique is very, very ummm......hummph.