I guess we should be grateful that Richard Posner is airing the kind of theories that we may see turned into practice under a potential Giuliani presidency:
Judge Richard Posner, a supposedly liberal-leaning jurist regarded by many as a future US Supreme Court candidate, said traditional concepts of criminal justice were inadequate to deal with the terrorist threat and the US had "over-invested" in them.
His proposed "big brother" solutions flabbergasted delegates at the Australian Bar Association's biennial conference, where David Hicks's lawyer, Major Michael Mori, is to be awarded honorary life membership.
"We have to fight terrorism with our strengths, and our strengths evolve around technology, including the technology of surveillance," said Judge Posner, a prolific legal scholar who sits on the US Court of Appeals for the Seventh Circuit.
"Are there terrorist plots that are at a formative stage among the large US Muslim community of two to three million people?
In the 600,000 Canadian Muslim population, are there people planning attacks on the US? What we have to do is discover the extent of the terrorist threat to the US. There is a danger, and it demands a rethinking of some of our conventional views on the limits of national security measures. We should think of surveillance as preventative, not punitive. We should think of controls that have nothing to do with warrants or traditional criminal justice to prevent abuses."
Judge Posner said the US temper and culture could not sustain repeated terrorist attacks.
I think this latter justification needs to be made more explicit. One reason some conservative legal types have acquiesced in legal torture and the indefinite suspension of habeas corpus is because, I think, they believe that these measures do prevent terror attacks and that if we experienced another one, the American people would demand some kind of emergency rule even more draconian than the executive branch under Cheney and Addington. So because of al Qaeda, we have to choose between a mild, torture-lite, only-a-few-people-detained-without-trial, secret tribunal, universal surveillance regime, and Musharraf-land. The inference is: American liberty is over for a generation or two. And this doctrine is coming from a libertarian. Can you imagine what the right's more authoritarian judges believe?
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