Judge Richard Posner on Terrorism.

With the fifth anniversary of the September 11th attacks coming up, we thought we’d talk to law professor and U.S. Court of Appeals Judge Richard Posner, whose latest book, Not a Suicide Pact: The Constitution in a Time of National Emergency looks at terrorism, the Constitution, and issues of surveillance, civil liberties, and history. One quote: “Civil libertarians are in a state of denial.”

Surveillance-themed music by The Nevers.

TRANSCRIPT
The Glenn & Helen Show: Richard Posner on Terrorism and the Constitution

Transcribed for use only by INSTAPUNDIT.COM

by eScribers, LLC

(Music Intro)

GLENN: Hi and welcome to another episode of the Glenn and Helen Show. Now brought to you by Pajamas Media’s PoliticsCentral.com. Today our guest is Judge Richard Posner, author of Not a Suicide Pact: The Constitution in a Time of National Emergency.

HELEN: He’ll talk about surveillance, whether America should take a more European approach to terror, why the FBI isn’t up to the job of fighting terror, and more.

(Music)

GR: We’ve got Richard Posner on the phone now. Hi Judge Posner, and thanks for joining us.

RP: My pleasure.

HS: Thank you so much for coming on. Judge Posner, you’re a law professor and a judge, but you’ve now written several books in a row on war, intelligence and national security. Why have you chosen this focus?

RP: Oh, it was kind of — it was an accident, really. In the summer of 2004 I was asked by the New York Times Book Review out of the blue to do a law review of the 9/11 Commission’s report which was about to come out. And I agreed to do that, plus I’d gotten a little bit interested in terrorism because I had been doing some writing about catastrophic risk. So I thought it would be interesting and I enjoyed working on the review and it got pretty good press, and I was encouraged to do more work. Hoover Institution at Stanford asked me to enlarge my review into a short book, and I did that. One thing leads to another and I met a number of people in the intelligence arena and got progressively more interested and made my interest enlarge from a specific interest in intelligence reform to broader questions of how to deal with terrorism.

GR: Well it’s interesting, your book’s aimed at a general audience, not just at lawyers —

RP: Right, right.

GR: Well, that’s like this podcast.

RP: Right.

GR: And I guess the title, Not a Suicide Pact kind of gives it away to some degree, but can you give our listeners sort of a short summary of your thesis?

RP: Yes, well, the question is to what extent does the Constitution place a limitation on effective means of dealing with terrorism. Now there is a whole network of other laws, like the Foreign Intelligence Surveillance Act, that limit counterterrorism, but the book is just, and I mention that in passing, but the book is essentially about constitutional limitation. And the danger is of interpreting the Constitution in a way that it really makes it difficult to respond to novel threats that weren’t anticipated in the eighteenth century. And, of course, there’s a famous quotation from an opinion by Justice Jackson, the Terminello case, dissenting opinion in which he said we shouldn’t allow the Bill of Rights to become a suicide pact. He had lived, of course, through World War II and actually he was the chief prosecutor at the Nuremberg trials, so he was very alert to novel menaces presented by twentieth century totalitarianism. And, you know, he wanted to remind us we have to interpret the Constitution in a way that it will enable us to cope with unanticipated dangers. Well, that was then, and now we have the terrorist threat, which is very grave, and it’s also very novel, and the question is whether the Constitution has enough clay in its joints that we don’t have to commit national suicide in order to comply with it. And my conclusion is, yes, the Constitution is flexible, the dominant interpretive theme in the history of constitutional law is flexible interpretation. I’ve always agreed with that approach, and I think if judges were more knowledgeable about the terrorist threat they would see how the Constitution can be interpreted in a way that it protects civil liberties adequately but doesn’t cripple our counterterrorist efforts.

HS: So, judges don’t really know much about terrorism. They are not trained in, say, information about national surveillance and that type of thing. They’re making decisions based on misinformation?

RP: Yes, let’s just say it’s a serious problem. See, we have a tradition in this country, we have a generalist judiciary. We don’t have specialized judges or specialized courts. There are exceptions, but they’re very few. That’s the tradition, so we don’t have national security courts. The closest we have, of course, is the Foreign Intelligence Surveillance Court, and then the review court on top of it, but they just do the FISA warrants, that’s all, they’re not a general antiterrorist court the way the French have. So most of these issues interpreting the Constitution in reference to antiterrorist measures are going to go before generalist judges like the judge in Detroit and her decision is going to be reviewed by the Sixth Circuit, a generalist court, and probably by the Supreme Court, a generalist court, so yes, our judges are seriously lacking in expertise. It wouldn’t be too serious a problem — it would be a problem, it wouldn’t be as serious as it is if there weren’t an imbalance. Because the judges at least think they know a lot about civil liberties. 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 way to the civil liberties concerns, because that’s what they know about, than the terrorist concerns which they don’t know about. Now, some judges would be the opposite. Some judges would say well, since I don’t know anything about terrorism, I better let the government do what it wants. Some judges will react that way. But I think more judges, probably because there’s hostility and skepticism by the Bush administration, more judges, I think, will react the other way. They’ll say to themselves well, I know a lot about civil liberties, now this terrorism business, I don’t know how serious that is, I don’t know where the government is approaching, whether these measures it’s taking are necessary, so I’m not going to give up on civil liberties just because of some kind of nebulous concern with terrorism.

GR: One of the things I notice you say in the book is that we tend to apply one of two different models: either a law enforcement crime model or a sort of World War II total war model to terrorism, but that it’s really somewhere in between. And, what does that lead to in terms of our approach?

RP: Yes, well it is uniquely in between. So, here’s what focuses it. So, in a conventional war like World War II, you’re usually pretty sure who the enemy is because the enemy, they’re foreigners, they’re abroad, they’re wearing uniforms, very easy to figure out who they are. Now once in a while, of course, you had those eight saboteurs landed by German submarine in 1942 in Long Island. Of course, they were — that was a little more complicated. They weren’t uniformed and so on. But they were quickly identified as German soldiers. So that was no problem. On the other hand, with terror we know there’s from England, we know there’s from the Pidia case and so on. The enemy may be your own citizens, they may be inside the United States, and it may be unclear whether they are the enemies or whether they’re just people with their big mouths or something like that; they talk wildly or maybe they just — it’s just a case of mistaken identity. So lacking that certitude about who the enemy is — to treat this as war is, I think, excessive. I was on a panel at N.Y.U. with a conference at N.Y.U. and another panelist was just a very intelligent young lawyer from the Justice Department who said well, since the battle zone, as he put it, is the whole world, the government should have the same power to seize people in the United States as enemies and cart them off to a military brig or something, as it would in a foreign country if they’re U.S. citizens. Well, that’s obviously a problem. So that’s why I don’t like the war metaphor. The crime model is even worse, actually. Because on the one hand this kind of terrorism we’re facing, maybe because of its international scope or because it’s growing on a population of a billion three hundred million Muslims and so on, but also because we’re living in the era of proliferation where the potential access of terrorists to nuclear/radiological weapons, biological weapons, chemical weapons and so on is growing by the day. So, we’re in serious danger and our criminal justice system simply isn’t designed for that. The procedures are wrong, the institutions are wrong, the whole basic assumption is wrong. So our criminal justice system assumes there’s going to be a huge amount of crime. And the purpose of criminal justice is not to extirpate crime, which would be completely quixotic, it’s just to control it. So we have, I think, about thirty thousand murders a year. And we’d like to maybe reduce that number slightly; we want to prevent it from growing. That’s the function of our criminal justice system. But we can’t take the same approach to terrorism and say, well, as long as we don’t have, more than five thousand people killed a year in terrorism, it’s just a spike in our murder rate and we’ll use the same old means. That doesn’t fit. That’s just wrong. So we have to have much more focus on prevention. And that isn’t the focus of criminal justice. The focus of criminal justice is the way you prevent is you wait for the crime to occur, sometimes we don’t stage the crime with a sting, we do wait for it to occur, then you arrest the person and the fact that you’ve caught someone has a deterrent effect on other people, and it incapacitates this guy. Well, that’s feeble as a strategy against terrorists. First of all, it’s extremely difficult to deter these people. They’re fanatics, many of them are suicidal, and deterrence doesn’t work. Incapacitation is not very effective because there’s this huge reserve army of potential terrorists. I mean, what the economists would say you have very high elasticity of supply. You remove one terrorist and someone else steps into his place. Really, they’re drawing on this pool of a billion three hundred million. Plus, not to mention the converts that they’re busy trying to make. Now, only a very tiny fraction of that billion three hundred million are potential terrorists, but you don’t need a big fraction of a billion three hundred million to have a really large pool of recruits. So if you lose one, ten, a thousand stuck in a prison somewhere, well, they’re quickly replaced. So, the criminal justice system obviously has a role to play in this, but I think it’s a subordinate role. And I’ll give an example of why — it may shock you a little — example why our criminal justice system just isn’t designed for this. If you think of the rule of proof beyond a reasonable doubt, which you need to convict and imprison a person, what it says is that we’re much more worried about acquitting — I mean, we’re much more worried about convicting an innocent person than acquitting a guilty person because with that rule you’re going to have a lot more false negatives, that is, acquitting guilty people, and a lot fewer false positives, convicting innocent people. And, you know, so you’re weighting the false positives much more heavily as bad things and jiggering the rules so that that you minimize those. Well, with terrorism it’s very different. Because that false positive, that terrorist you failed to neutralize, he may be incredibly dangerous.

HS: And the other criminals aren’t? I mean, we have people released, I’ve seen people released as a false positive and they go off and do some pretty awful things.

RP: Yes, but there is a great difference in the scale because even a serial murderer is a good deal less dangerous than a terrorist. If you think about the recent Heathrow plot — now, we don’t know how far that actually would have gotten because a lot of these things fall of their own weight and they — people get discouraged, their efforts to create explosives don’t work, they blow themselves up, and so on. But it was a dangerous plot you certainly had to take seriously. And think of what it would do to the country if there were a really serious attack on civil aviation. And civil aviation is by no means the only thing these people are interested in. If you think of the history of the Al-Qaida attacks, so the attack on the World Trade Center in 1993 had nothing to do with civil aviation. Likewise, the attacks on our African embassies and the attacks on the Cole. So while they’re clearly very interested in shutting down — would like to shut down civil aviation, that’s not all they’re interested in. And as I say, with the access to weapons of mass destruction improving for individuals and small groups, these terrorists have really a tremendous potential to do harm. And as I say, our criminal justice system sort of is premised on the idea that yes, we’re going to have a lot of crime and we don’t try to prevent or extirpate crime, we just try to control it. We just try to keep it down. And that’s not good enough for terrorism. That we have to prevent. Even a single attack could be — I mean, look at the enormous repercussions of the 9/11 attacks. You could say well, what’s killing three thousand people? It’s a tiny fraction of the U.S. population. It has tremendous effect; not just direct economic effect, but political effect, geopolitical effect, and that can happen again. And our criminal justice system isn’t designed to prevent that.

GR: Isn’t one of your points as well that an ounce of prevention may actually preserve more civil liberties given that in the event of a big terrorist attack you’re likely to see a backlash and much more stringent regulations after the fact?

RP: Yes, absolutely. Yes, there’s no question that the worst thing that could happen to civil liberties would be another attack, and I think the civil libertarians are in a state of denial. Because in order to feel comfortable about their civil libertarian posture they have to, as a sort of psychological matter, they really have to denigrate the terrorist threat. They have to say it’s exaggerated and we haven’t been hit in five years, and so on and so forth. So, if they faced up to the fact that there is a real danger and that another attack on the scale of 9/11 would really set civil liberties back by many, many years, no question about it. It’s interesting, the Heathrow business. The Heathrow plot scared people in the United States partly because the tremendous inconvenience that was visited, just for a few days, but the inconvenience, that got people’s attention. So all of a sudden they start thinking about the English, their law that allows them to hold a person basically incommunicado for twenty-eight days. Maybe that’s something we should be thinking about. So even the foiled plot gets people thinking about how we could — about the tradeoff between civil liberties and security.

GR: One interesting irony here is that it’s usually people on the left that want the United States to be more like Europe. And people on the right —

RP: I know.

GR: — that talk about exceptionalism, but here it seems like it’s totally reversed.

RP: I know, it’s really funny. I think the reason — I mean, yes, I think that’s an excellent point. One of the things that I have complained about with regard to the Supreme Court’s practice of citing foreign decisions in constitutional cases — I have many complaints about it. What is probably the most important is simply that it requires a great deal of cultural awareness to understand the meaning and context of a foreign decision dealing with, you know, freedom of religion, or abortion or what have you. But the other — another objection I have is that if they’re going to say we’re one world and we can learn a lot from foreigners, and so on and so forth, well, then they ought to be looking sort of across the board and look at other areas besides capital punishment, where foreigners have a different approach from Americans. And one of these is national security. What’s so interesting about Europe is, and it makes kind of sense when you think about it, it’s a more statist culture, so and it’s anti-capitalist, so European countries have much more stringent protection of privacy against corporations than we do, but they’re much more relaxed about national security surveillance, other evasions of privacy done by government. ‘Cause they trust their governments. So there’s this curious inversion. But I think, obviously I don’t think we should mold our constitutional law into foreign values, but we should look at foreign experience and see why they do that. Now, it is very important in counterterrorism, much less important in criminal justice, because less is at stake with ordinary crime, it is very important to be able to hold people for a prolonged period, not indefinitely, not forever, incommunicado because you don’t want to let them go before a judge because then everything’s out in the open and the person clams up and so on. You want to isolate people in order to put pressure on them and also to conceal what you’re doing from their accomplices. So, there are a lot of ways in which once you identify the terrorist threat as sui generis which you say this provision and that provision and so on of our law doesn’t fit. Now as it turns out, if you look at — not at a network of laws that could be changed relatively easily, but you look at the Constitution, we’re less penned in than people think. So these articles in the newspaper about the twenty-eight day rule in Britain says oh well, that’s really different than the United States because in the United States you have to bring a criminal suspect before a magistrate within forty-eight hours. Well, that’s wrong. What the Supreme Court has said is that there’s a strong presumption that you have to bring someone before a magistrate within forty-eight hours, but if it’s a bona fide emergency or there are other exceptional circumstances, you can keep the person longer. Now that vagueness, that open-endedness, how much longer do they mean and so on? That’s bad, and of course the cautious criminal prosecutors, they don’t want to endanger a prosecution so they’re going to stick to the forty-eight hours, but it would be constitutionally permissible, I think, to have a law like the British law permitting longer detention in a national security emergency. So, the civil libertarians love to wave the Constitution because, you know, the Constitution is kind of holy writ for Americans. In American public discourse if you say something is unconstitutional you say that the framers of the Constitution lacked perfect foresight or something, you’re a blasphemer. So it’s important to recognize the Constitution is really quite a loose garment, not a shrink-wrap, so we have flexibility to address these terrorist dangers.

GR: That’s kind of another role reversal, isn’t it? I mean, usually the living constitution theory is associated with people on the left and with, you know, trying to find a right to gay marriage or something, but here it sounds like you’re the one advocating a living constitution approach and it’s the civil libertarians who are sort of taking the rigid ‘it is written’ approach.

RP: Yes, that’s interesting. I hadn’t thought about that. You know, these interpretive theories tend to be very opportunistic and often the same people will argue strict construction when they’re defending something that is in the original Constitution and loose construction when they want to do something that isn’t there. But I think I’ve been consistent, I think I’ve always been a loose constructionist like Oliver Wendell Holmes because it’s an eighteenth century document, and I think the framers were really remarkable people. They were extremely intelligent and they had opportunities that closed for subsequent generations, they really could write on a clean slate; they had very relevant historical experience with the British monarchy, and strength and limitations, so I think they did a great job. But the notion that they had the answers to twentieth century problems rather than having created a framework in which these novel problems could be addressed is, I think, wrong and dangerous. So you’re right, but there’s another reversal, this is having civil libertarians rhapsodizing about the FBI and about warrants and so on, and about warrants presented to a secret court, the Foreign Intelligence Surveillance Court. They used to complain that the Foreign Intelligence Surveillance Court was just a rubber stamp; that it had never turned down a warrant request. I think what actually happens is, from what I understand talking to people, is that sometimes they’ll tell the Justice Department they’re not satisfied with the showing they’ve made and then they send them back to get more evidence. But an ex parte judicial proceeding, especially of a secret tribunal where the people are presumably self-selected, you see, you can’t become a member of the Foreign Intelligence Surveillance Court unless you undergo the full — well, all of the judges get a full background investigation when they’re appointed, but to be on the Foreign Intelligence Surveillance Court you have to have an investigation that will qualify you for a top secret clearance. Well, a lot of judges just wouldn’t undergo that. They’d regard it as an invasion of privacy and they’re not that interested in listening to warrant applications, so you will tend to get on a court like that the national security buffs. And they’re not going to be quick to prevent the government from conducting surveillance for national security purposes. Now, if they’re defied by the administration, the administration has not been tactful in its dealings with the Foreign Intelligence Surveillance Court, then they may get their back up and they begin asserting their independence, but I don’t think the Foreign Intelligence Surveillance Court’s really a significant screen protecting people from overzealous national security investigations. And similarly I think the civil libertarians, are very much opposed to the creation of a domestic intelligence service on the model of MI-5, something I have been urging since my book review two years ago, because they say the FBI is in the Justice Department, that means it’s completely sort of domesticated and trained to be able —

HS: Why don’t we have a counterpart to the MI-5? What’s that about?

RP: Well, I think the reason is that we don’t have the same history. You know, the distant origins of MI-5 are actually in the sixteenth century because Queen Elizabeth, the first Queen Elizabeth, faced a very serious what today we call a terrorist threat that actually has parallels because she was Protestant and the Catholic powers, France and Spain particularly but also the Pope, were very eager to bring her down. And one way in which they tried to do it was to send priests disguised as ordinary people into England with instructions. They would try to kill Queen Elizabeth, they would try to disrupt the monarchy and pave the way for Mary Queen of Scots, and so on. And they were told, this is the sort of modern parallel, you’re likely to be caught, tortured and killed but that’s okay because you’re going to be a martyr. So they got these martyr candidates flooding into England. And Queen Elizabeth had a very able counterterrorist officer, Sir Francis Walsingham, and he conducted domestic surveillance. Obviously he couldn’t do it electronically but intercepting mail and planting spies inside the subversive groups and so on and so forth. So, from the sixteenth century on, Britain appreciated the importance of domestic intelligence and MI-5 was founded along with their CIA counterpart, MI-6, in 1909, and they had very significant successes during World War II where England was peppered with spies. It was extremely easy for Germany to plant spies in England by submarine, by parachute, and just a lot of people who would fly into England from neutral countries. And MI-5 was extremely successful in turning these people and using them to feed misinformation back —

HS: So we just haven’t had the experience?

RP: We haven’t had the experience. You know what’s interesting, our OSS, our first real sort of counter — it was more than CIA, more than intelligence but also covert acts and so on, founded it when we got into World War II. Actually, the impetus from it, the inspiration came from an English intelligence officer, a fellow named Stevenson. So we’ve always lagged in that. Of course in World War II we were worried about German espionage and had very much of it — FBI dealt with that. The real penetration of the United States in the forties was not by the Germans, it was by Soviet agents. And that was terrible. Hundreds of members of the U.S. government were Soviet agents. And, of course, they got some of our atomic secrets that way. The FBI was totally ineffectual in dealing with the communist penetration. By the early fifties the communists in the government had been rounded up and neutralized one way or the other. But at that point the FBI kind of wakes up and penetrates successfully the U.S. Communist Party. But by that time the Communist Party was not a big danger. Anyway, the real spies — the Soviet spies had generally not been members of the U.S. Communist Party because that was a giveaway since there was some surveillance of them. So that was the fifties and then, of course, in the early seventies came the revelations that the CIA and the FBI and other agencies like the Chicago Police Red Squad had been engaged in domestic intelligence activities that were quite off the wall and quite absurd, partly because of J. Edgar Hoover’s paranoia, partly because there is a great potential for abuse whenever you start trying to maintain surveillance of domestic threats. Because terrorism is a political crime, if you’re worried about terrorists you’re going to be interested in people’s political views, and there’s always a blurry line between actual terrorists and someone who is just preaching revolution. So there were abuses and that lead to a big reaction, the Church Committee and the Pike Committee and since then the FBI has been relatively docile and focused on ordinary crimes. But the deeper problem with the FBI as an all-purpose domestic intelligence and police service is that they are a criminal investigation agency and all their culture, their recruitment, their practices, they’re all oriented toward arresting people and developing evidence that will stand up in court and lead to a conviction. That’s what they understand. They don’t understand the kind of cat-and-mouse game that’s involved in trying to learn the scope of a terrorist network. So they’re premature. They jump in too soon. Like this group in Miami, the Miami Seven, who wanted to blow up the Sears Tower in Chicago? They were actually penetrated by an FBI informant, which is great, and then as soon as the informant had learned enough about these people to realize they were committing crimes and materially supporting terrorism and so on, the FBI pounced and arrested them and they’re being prosecuted. Now, so there are several problems. One is when you arrest people at the very outset of their terrorist planning you don’t really have the kind of the strongest case. You may have plenty of evidence for a conviction, but there’s always the uncertainty when you catch people in the early planning stage, was this really serious or were these just a bunch of loonies who were just talking a lot and devising ridiculous plans. So, the terrorist prosecutions we’ve had in the United States since 9/11, they haven’t been very impressive occasions, have they? No, for one thing you provide a platform for fanatics, people like Moussaoui to have their hour on the stage making a lot of noise with the court. That’s not great.

HS: But you argue that the real issue isn’t really the gathering or interception of information on individuals, but how it’s put to use. How comfortable should we be that the government will use that information that it gathers about us properly and not link it, say, link it to, like, an insurance company, our boss or the New York Times?

RP: Well as I say, I think the warrant as a protection for civil liberties in the national security area is not a good idea. What happens is that you get dilution. Apart from the secret court and so on, the warrant requirements under the Foreign Intelligence Surveillance Act are laxer than under Title III, the standard wiretapping statute, because all you have to show is that someone is an agent of a foreign power, a foreign group, and that’s different from having — when you’re talking about terrorists, if you have probable cause to think a person is an agent of a terrorist group, or probably is engaged in illegal activity, although not a hundred percent. But there is a loosening in the standard but it’s still too tight because what you really want to find out is who these terrorists are, so FISA is designed for the case in which you know that you’re dealing with agents of a foreign power, you’re dealing with terrorists, and you want to monitor their communications. It’s no good for finding out whether someone is a terrorist or who is a terrorist. For that you need — probable cause is too restrictive for that. So that presents your question. If we have more surveillance, if we don’t use warrants, then how are we going to prevent the recurrent kind of abuses we had for many, many years. And, I’ve suggested two ways. One is that interceptions for national security purposes can only be used for national security purpose. So in other words, if you have some large scale surveillance program and you’re listening to a lot of people and so on, and you discover that one of these people is not in fact a terrorist but he doesn’t pay his taxes, doesn’t pay child support, employs illegal immigrants or what have you, I would say no, that information can’t be used to prosecute this person for any other reason. It can only be used to deal with a national security threat. That, I think, would alleviate people’s concerns. The fact is it’s very difficult for most people actually to navigate through life in our society without violating laws once in a while. There’s rampant illegality of a minor sort and people don’t want to be in a position where loose talk on a phone or in an e-mail leads to their being prosecuted because they’ve provided some compelling evidence of criminality, but it’s minor and usually not bothered with. So that would be one thing. The other thing would be to make sure that whenever someone’s conversation is listened to or e-mail is read by an intelligence agent, intelligence officer, a record be made who is the person, why did they listen, what did they find out and so on, and this information about who is monitored should be turned over to watchdog committees in Congress, maybe the executive branch, maybe even some kind of judicial organ to make sure that these are bona fide national security investigations. It won’t be perfect, there would be abuses, but I think the danger is great enough that we have to — you know, it’s interesting. What we have grown accustomed to is an extraordinary degree of privacy in certain ways. Back in the — remember in the days of telegraph, you had no privacy because you gave your message to the telegraph operator and he would then click the key so he knew exactly what — and then after, with the early telephone, most people were on a party line. And of course eavesdropping on party lines was pervasive. Finally we get secure telephonic communications, so now people have more privacy than they ever had before. Well, if we subtract a little bit of that privacy because we have a national security threat, move the privacy dial back a few notches, people shouldn’t feel that that’s the advent of the Orwellian state, because we didn’t have an Orwellian state when we didn’t have secure telephonic communication. The other thing is that people — it turns out Americans give up their privacy for relatively small benefit. So, for example, if you buy books on Amazon the way I do, you know that Amazon creates a profile of your reading preferences which tells anybody who’s interested a great deal about your politics and so on and so forth. But people do that because they can’t resist the one click, right? So I think a lot of — and of course a lot of people, myself for example, we’re using the e-mail of our employer. Well, you don’t have any privacy right in the e-mail of your employer, the computer of your employer and his e-mail system. He has that. He can monitor that all he wants. So, I think a lot of people would be more comfortable if they thought that only the government, and not their employer, was reading their e-mail, and that the government’s only doing it because it was looking for terrorists. And obviously most people aren’t terrorists, so they don’t worry about that. So I think we need some fresh thinking. And there’s a tendency of the civil libertarians to kind of repeat tired formulas. You know, it’s a kind of nostalgia for the old days. It’s like the people who get misty-eyed about the New Deal and things like that, or about the labor unions’ struggle in the twenties and the Wobblies and Tom Mooney and all that stuff. Most civil libertarians are nostalgic for the McCarthy days, right? We had a simple enemy in McCarthyism and we could marshal all our constitutional resources to fight McCarthyism. Now it seems to me to be an immensely more complex and equivocal a problem and this old thinking is not helpful.

GR: Well, thank you for joining us and injecting a little bit of new thinking. Before we go, is there any final point you want to make or comment on ways you think people might misunderstand your book that you’d like to clear up in advance or something?

RP: No, but I really thank you, the two of you, for giving me this opportunity and I think this is a great new medium, the podcast, and I know, Glenn, how much you’ve done for blogging, so thank you very much.

GR: Thank you for joining us.

HS: Thank you.

(Music)

GLENN: Well, that certainly gives us a lot to think about and I hope a lot of people will be thinking.

HELEN: You know he’s right about the law enforcement end of this. I think the FBI and other law enforcement have a really hard time dealing with any type of prevention. They’re mainly on the scene when the, you know, after the crime’s occurred, but you can’t count on them a whole lot for preventing crime.

GLENN: Yeah, it’s when you find Professor Plum dead in the conservatory with his head bashed in with a lead pipe that they swing into action, not before the fact as a general rule.

HELEN: I think we need somebody way before that when we’re fighting something like terrorism.

GLENN: Yeah, I really do think it’s interesting the role reversals he sees, you know, you really do find sort of left and right swapping where people on the left don’t want to become more European, they talk about American exceptionalism, the people on the right often admire the anti-terror efforts of Britain and France. And it’s even true on the constitutional front, I think. You know, people will tell you that changes in technology and military matters mean that the right to bear arms shouldn’t mean anything, but they don’t seem interested in hearing that changes in technology and military matters mean that the government should have different powers in fighting terrorism, so it’s a big switcheroo all around.

HELEN: I guess it just depends what view you have.

GLENN: Yeah, I guess that’s right, it’s all lawyering, isn’t it? Well, there’s nothing wrong with that.

We hope you enjoyed this show anyway, and you can tune in for future episodes whenever we get around to making them. Check out our show archive at glennandhelenshow.com or you can subscribe via ITunes or any of a wide variety of other podcast subscription services. Until then, have fun on the internet.

HELEN: Talk to you next time.

(Music)

Transcribed by: Yeshayahu Heiliczer

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