Posner's argument is that the War on Terror demands a more flexible interpretation of the Constitution. The terrorist threat is real, and civil libertarians need to recognize that. He believes that there is a middle ground available. We can protect civil liberties but still maintain our ability to fight terrorism. Posner also believes that judges simply do not have the background to make educated decisions about terrorism issues. Terrorism is just too foreign to them...
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.That's interesting, especially coming from a judge. I think people often forget just how generalist the vast majority of our judges are.
Prof. Althouse also posts about the podcast, quoting an excellent comment made by one of her readers. He summarizes Posner's points well...
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.This is an interesting quote from Glenn Reynolds responding to Glenn Greenwald's flailing about over Posner's statements...
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.
As I note in the podcast, what's interesting is that Posner's advocating a "more European" approach to national security powers, which produces a left/right role reversal. Posner also makes the point that it's interesting that the Supreme Court's foreign-law enthusiasts don't look to Europe as a model in these areas, as they do in the case of capital punishment.European nations, like Great Britain, have broad national security powers. They have domestic intelligence agencies, like MI-5. I think it would've been interesting to see Scalia, Thomas, or Alito site foreign law and national security practices in their Hamdan dissents. They wouldn't, but it would just be a nice thumb to the eye of the "let's look to our foreign brethren (when they support our favored view)" crowd.