I think if judges were more knowledgeable about the terrorist threat, they would see how the Constitution can be interpreted in a way that, you know, protects civil liberties adequately but doesn't cripple our counterterrorist effort.Of course, there's a lot of flexibility in putting it that way, using "adequately" and "cripple."
The key problem for Judge Posner is the " imbalance" in what our "generalist" judges know:
The judges think they know lot about civil liberties, and they don't know anything about terrorism, so when they're confronted with a civil liberties issue involving terrorism, they're much more likely to give weight to the civil liberties concerns, because that's what they know about than the terrorist concerns, which they don't know about.Some judges, he notes, will deal with their lack of knowledge by deferring to what the government wants to do, but most don't.
There's lots more in the interview. Go listen.
IN THE COMMENTS: JohnF writes (aptly!):
The podcast Ann links to is absolutely terrific. It's pretty much all Posner. I think summarizing it cannot do it justice, but here are some of the points he makes, in addition to the ones Ann quotes:
1. There are two prevalent metaphors for dealing with the terror threat -- all out war (the WWII metaphor) or police action (the crime metaphor). However, unlike WWII, we can't always tell who the enemy is; and our criminal justice system is designed not to prevent all crime, but to control it to acceptable levels. We need an approach gauged to prevention.
2. The worst thing that could happen to civil liberties is another attack. Many civil libertarians lose sight of this.
3. Many civil libertarians are in denial. They must diminish the severity of the threat in order to be convincing that the government needn't be as active as it is trying to be.
4. People never had the degree of privacy they have now (he gives telegraphs and party telephone lines as examples). Moreover, people today give up their privacy routinely and often in trivial circumstances. Whenever you order from Amazon, you are aware a database is being tweaked about you; all your emails from your employer are totally open to his inspection, etc. A small reduction now is not a big price to pay.
5. His suggestion: (a) liberal government surveillance for national security, (b) no use of anything discovered during the surveillance for any purpose (i.e. prosecution) beyond national security, and (c) careful records kept of the surveillance that would be reviewed by some one, e.g., some Congressional committee, to insure the surveillance was being done for national security purposes. He recognizes that there could be abuses, but believes they would be minor.
In all, it was a fascinating talk, with very engaging discussions of some foreign approaches to security, some English history, and a brief discussion of current events in terrorism, from Heathrow to Judge Taylor.