Safety vs. liberty: How far should we go?

November 20, 2005

BY JAMES L. MERRINER

A terrorist drives into Chicago carrying bombs in the trunk to blow up Sears Tower. After Sept. 11, we understand, gloomily, that this is not an unrealistic scenario.

Suppose the cops did get wind of a plot to bomb Sears Tower. So maybe they should roadblock every highway into Chicago, check every car and driver. Or maybe such a police-state crackdown would violate our civil liberties.

The conflict between civil rights and public safety -- indeed, that very bombing-Sears-Tower scenario -- is being debated by two legal giants at the University of Chicago. The full-mooners on talk radio and demagogues in Congress have been debating -- more accurately, name-calling and flag-waving -- about the tension between rights and security for years. Now, Professor Geoffrey R. Stone and Judge Richard A. Posner are conducting a real, honest-to-goodness debate in the tradition of Lincoln and Douglas, except it's high-tech.

Stone recently wrote Perilous Times: Free Speech in Wartime, chronicling the ghastly things our government has done in the name of national security since 1798. Posner, a federal appeals judge in Chicago and also a law professor, is writing a book (his 39th!) arguing the case for national security.

Both face-to-face and online, Stone and Posner have confronted each other over this issue since last June. They first faced off at Chicago's Printer's Row Book Fair, then debated at the New York Public Library on Sept. 20 and conducted a weeklong online discussion at www.legalaffairs.org/webexclusive/debateclub_patact1005.msp last month.

Their debate is highbrow and genteel, of course, but don't think that they are nudging each other, in an academic way, toward some truth lying somewhere in the middle. Their exchanges are sharp and at times even personal. Stone can't seem to understand why Posner is in his view so complacent about civil rights, and Posner can't seem to understand why Stone is in his view so complacent about terrorism.

Getting personal

It got personal over, of all things, Posner's mother. He is regarded today as a right-winger, a champion of applying market economics and cost-benefit analysis to the law, but he was a "Red diaper baby," born to commie-symp parents in New York in 1939.

Posner, writing on legalaffairs.org, said: "I believe I have a closer personal acquaintance with civil-liberties abuses than you. My mother was forced out of her job as a public school teacher, and later hauled before the House Un-American Activities Committee, because of her communist sympathies. I consider her political views to have been idiotic, but I am quite sure that she was completely harmless. Of course if the reins are loosened there will be more abuses; and of course those abuses are costs that must be reckoned in striking the balance between safety and liberty. I just wish you gave as much weight to safety as you do to liberty."

Stone replied: "I love that you've shared your upbringing, Dick. . . . [Y]ou've inadvertently affirmed my insistence on the relevance of history! Let's see, how does it go? A liberal is a conservative who's been mugged; a conservative is a liberal who's been arrested; and an advocate of law-and-economics is a Red diaper baby whose mother's been hauled before HUAC."

And here's a part of their exchange on the bombing-Sears-Tower scenario:

Posner: "Were it known that a terrorist was driving toward Chicago with a bomb, would you think it an improper restriction on civil liberties to stop and search all cars approaching Chicago, even though there would be no probable cause to suspect any given driver of carrying a bomb? . . . Do you think terrorism is something we should worry about?"

Stone: "I would permit a roadblock at which all drivers were checked, as long as there was probable cause to believe there was such a terrorist and the roadblock was carefully time-bound and even-handedly administered. . . . [But] I would require the exclusion in court of any evidence obtained at a roadblock except against the suspect being pursued (that is, the terrorist with the bomb). . . . [Terrorism] is a real threat. I would not be shocked (as I was on 9/11) to wake up tomorrow to learn that the Sears Tower had been blown up. I would be equally shocked, though, to learn that our government is actually taking the necessary precautions to deal with the threat."

No ivory tower quarrel

Speaking of "necessary precautions," the rights-vs.-security argument is no mere ivory-tower quarrel. On Dec. 31, certain provisions of the Patriot Act of 2001 are due to expire. This law expanded the government's investigative and enforcement powers. Congress is seeking a compromise to extend the law with changes, but President Bush threatens a veto if it is watered down by so much as a drop.

In an e-mail to this writer, Stone said he and Posner probably will renew their debate after Posner finishes his book next spring. The book is the first of a 15-volume series, called "Inalienable Rights," that Stone is editing for Oxford University Press.

Stone added, "I don't think it's quite right that we didn't shift our views in these debates. I think we respect each other a lot and that if you read carefully you will see some concessions as the discussion progressed."

To be sure, their debate is more subtle than this summary can allow. Posner notes that there is one legal category for crime and another for war, while terrorism is neither or both and so we need a new category.

Fair enough, but the puzzling thing about Posner's position is that he is otherwise so skeptical about government. Recently I interviewed Posner about other matters and he mentioned by-the-by that the federal government is incompetent. A Congress of 535 people, he said, cannot possibly manage a budget of $2.5 trillion.

A few weeks later, Posner, who publishes his thoughts more often than the rest of us rake the leaves, had an article in the Nov. 14 New Republic, "Our Incompetent Government." He wrote that "four years after Sept. 11, and two and a half years after the creation of the Department of Homeland Security, the federal government had yet to devise an executable plan for responding to a catastrophic event in New Orleans -- or, I imagine, any city in the United States. . . . We cannot even waste money efficiently."

The War on Terror is, after all, a government program. It is perplexing that conservatives should view this one as the essence of patriotism while condemning others, say, the War on Poverty, as boondoggles. Surely the War on Terror invites boondoggles, pork, abuses of power, at the least, inefficiencies and personal insults. Anybody flying out of O'Hare or Midway airports today will grasp that last point at least.

Here is another hypothetical question that Posner posed to Stone: A kidnapper has buried his victim alive and refuses to tell the police where. A policeman punches him in the face to make him talk. Would you think the policeman had acted improperly?

Stone replies with war stories from his days as a civil-liberties lawyer fighting the Chicago Police "Red Squad" and the FBI: "The allegations in the complaint sounded like sheer paranoid fantasy. . . . [But] we learned over several years that what the FBI and the Red Squad had actually done was many, many times worse than what anyone (including the guys wrapped in aluminum foil to protect themselves against alien death rays) had ever imagined."

As they say in the blogosphere, "read the whole thing."

Stone is right. The record clearly shows that public officials charged with national security are capable of doing dumber things, and causing more harm, than even their critics sometimes can imagine.

James L. Merriner, author of Grafters and Goo Goos: Corruption and Reform in Chicago, 1833-2003, is writing a biography of former Gov. George Ryan.