With Hillary Clinton and Barack Obama still slugging it out in the Democratic primaries, John McCain has already cleared the way to the Republican nomination. He’s spending his time laying out his positions for the general election, and one of the most important issues has to do with judicial nominations. We were lucky enough to catch up with McCain’s friend Fred Thompson, who talked with us about McCain’s positions, the current and possible future states of the federal judiciary, and whether there’s a place for an Attorney General Fred Thompson in a McCain administration. (“No Ma’am” he responded, when Helen asked.)

Cass Sunstein is the Karl Llewellyn Professor of Jurisprudence at the University of Chicago, and the coauthor, with Chicago colleague Richard Thaler, of Nudge: Improving Decisions About Health, Wealth, and Happiness.

Sunstein and Thaler espouse a theory of “Libertarian Paternalism,” in which people have more choice than they do now, but in which ignorance and sloth are exploited to encourage them to make good choices even when they’re lazy. We talk about libertarian paternalism, the virtues and vices of technocracy, and which Presidential candidates favor Sunstein and Thaler’s approach.

Michael Yon is a blogger, and independent journalist, and he’s actually the longest serving embedded journalist in Iraq. He’s also got a new book out, Moment of Truth in Iraq: How a New ‘Greatest Generation’ of American Soldiers is Turning Defeat and Disaster into Victory and Hope. It’s a terrific book, and a must-read for anyone interested in the war on terror.

We talk to Michael about independent blogging, the situation in Iraq and how it’s changed since he started reporting in 2004, and his new book. Plus, advice for the Presidential candidates on what to say, and do, about Iraq over the coming year.

Tax Day is approaching, the markets are turbulent, and people are wondering how to move financially. So we talked with Jim Schlagheck, producer of public TV’s Retirement Revolution and author of The Cash-Rich Retirement: Use the Investing Techniques of the Mega-Wealthy to Secure Your Retirement Future. The book is interesting, action-oriented, and — in my opinion — more conservative and realistic than a lot that I’ve read. Our discussion includes what to do financially, how the housing bubble and the “coming demographic storm” of Baby-Boomer retirements are likely to affect investments, and what economic problems will confront the next President.

Music is by Mobius Dick. Show archives are at GlennandHelenShow.com.

We talk to Jim Dunnigan, publisher of StrategyPage.com and author of numerous books on war, intelligence and security, and Austin Bay, who blogs at AustinBay.net, and who is the author of both novels and nonfiction works on war and military matters. They fill us in on the latest developments in Iran, Iraq, and Venezuela, and talk about why the Obama Campaign is good for America.

Music is by Mobius Dick. Show archives are at GlennandHelenShow.com.

Want to raise a rich kid? Or at least a kid who knows how to make money without waiting for someone else to offer a job? That’s what Troy Dunn offers in his new book, Young Bucks: How to Raise a Future Millionaire. We talk to Troy about why parents should want their kids to be entrepreneurial, how to encourage them to strike out on their own, and what the Presidential candidates are missing when they talk about economics.

Music is by Mobius Dick. Show archives are at GlennandHelenShow.com.

With the Super Tuesday primaries just a couple of days away, we caught up to Mitt Romney and asked him about gun control — he says he’ll veto any gun control bills that cross his desk as President — about the economy, and about John McCain. Plus, whether Romney is mean enough for politics. Can he pull off a Turnaround?

It’s an bipartisan election double-header, featuring interviews with Republican candidate Rudy Giuliani and Hillary Clinton economic adviser Gene Sperling. We talk to both about the Second Amendment, energy policy, terrorism, and Hillary’s stimulus plan. Plus, Helen cracks Glenn up with an observation on podcast tax credits.

Music is “Black UFOs” by Mobius Dick.

How can we break the OPEC oil cartel for $100 a car? Engineer Bob Zubrin has the answer — by requiring all new cars sold in the United States to be flex-fuel vehicles that can run not just on gasoline, but on ethanol and methanol.

We talk to Zubrin about his new book, Energy Victory: Winning the War on Terror by Breaking Free of Oil,about how oil money funds terrorism, and about how proven off-the-shelf technology could undercut OPEC’s power.

Music is by Mobius Dick.

It’s sure to make a splash, and it’s already got some left bloggers in a tizzy even though it doesn’t come out until next week. It’s Jonah Goldberg’s new book, Liberal Fascism: The Secret History of the American Left, From Mussolini to the Politics of Meaning. The title comes from H.G. Wells, and the history won’t be news to people who’ve paid attention — which means it will be news to a lot of people, but Goldberg has a lot to say about the “progressive” roots of both socialism and fascism and the way they’re reflected in contemporary politics. Plus, thoughts on the Hillary and Huckabee candidacies.

This podcast was brought to you by Volvo Automobiles. Music is “Nobody’s Full” by Todd Steed and the Suns of Phere.

The Iowa Caucuses are just around the corner, and we thought it was a good time to catch up with Senator John McCain, who’s seeking the Republican nomination for President. (Our earlier interview with Sen. McCain is here.) We talked about the election, Supreme Court appointments, the Second Amendment, Iraq, and much, much more. McCain was rested, relaxed, confident, and full of I-told-you-sos, but then he was staying in a Holiday Inn Express when we talked to him.

This podcast was brought to you by Volvo Automobiles. Music is by Todd Steed and the Suns of Phere.

The Supreme Court has decided to hear an appeal on the D.C. gun-ban case, meaning that the question of whether the Second Amendment protects a right to arms will be squarely before it. The suit was brought by Bob Levy, a senior fellow in constitutional studies at the Cato Institute, and we talked to him about the case, the law, and what may come next.

This podcast was brought to you by Volvo Automobiles. Music is by Todd Steed and the Suns of Phere.

First, it was the Dangerous Book for Boys, and now it’s the Daring Book for Girls. We talked to Daring Book authors Andrea Buchanan and Miriam Peskowitz about girls, the outdoors, and the shockingly large number of fun activities that don’t involve cellphones, televisions, or videogames.

We traveled to the Popular Mechanics Breakthrough Conference in New York, and talked to energy efficiency guru Amory Lovins of the Rocky Mountain Institute, MacArthur Genius Award winner and science educator Shawn Carlson, and appropriate-technology entrepreneur Shawn Frayne. It’s a fascinating discussion of everything from how America can save energy and protect the environment without sacrificing our lifestyle, to ways of helping the third world, to techniques for energizing American students interest in science and technology.

Mike Huckabee is running for President. He was governor of Arkansas from 1996 to 2007, he’s the author of numerous books including From Hope to Higher Ground, and the book about how he lost over 100 pounds, Quit Digging Your Grave with a Knife and Fork : A 12-Stop Program to End Bad Habits and Begin a Healthy Lifestyle. He’s the Jared of Presidential candidates! Helen’s also a fan of his book on juvenile violence, Kids Who Kill.

We talk to Governor Huckabee about gun rights and gun control, health care (and diet), his support for the “Fair Tax” plan, gay marriage, and more.

This podcast was brought to you by Volvo USA. Music is “Nobody’s Full,” by Todd Steed and the Suns of Phere.

We talk to Laura Ingraham about her new book, Power to the People, which looks at ways that ordinary people can empower themselves in the culture and in politics. We talk about large families and prejudice against parenting, against porn (we’re a lot more favorable than she is) and politics, plus a look at the 2008 elections and the immigration battle.

It’s an interesting discussion, and Ingraham is different from many other social reformers in that she largely stresses individuals using their voices and market power, as opposed to the force of law, to effect changes in culture, politics and media. She also suggests that individuals get involved in reporting on local politics, school boards, and the like, a place where one or two people can make a real difference.

This podcast is brought to you by Volvo Automobiles. Music is by Doktor Frank’s band, the Mr. T Experience.

The sixth anniversary of September 11 is just past, and it’s a good time to look at where we are, and what to do in coming years. We spoke to Harvard Law Professor Jack Goldsmith, whose new book, The Terror Presidency: Law and Judgment Inside the Bush Administration, tells the story of his experience working at the Defense Department and as head of the Office of Legal Counsel at the Department of Justice, and also looks at how the decisionmaking process relating to terror is being “strangled by law.” Goldsmith talks about his experiences, his book, and what the next President and Congress should do.

This podcast was brought to you by Volvo Motors. Music is by Mobius Dick. Visit our show archives for updates and prior episodes at GlennandHelenShow.com.

Richard Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, and the author of Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation as well as Mortal Peril: Our Inalienable Right to Health Care?

These are topics of particular interest to us, as Helen is kept alive by Tikosyn, a somewhat unusual anti-arrhythmic drug. We talk to Epstein about the pharmaceutical industry, its critics, and what to do to promote new drugs and treatments for problems that people are dying from today.

This podcast is brought to you by Volvo USA.

Austin Bay is a novelist and nonfiction author (author of The Wrong Side of Brightness and A Quick and Dirty Guide to War), blogger and host of Pajamas Media’s Blog Week in Review. He and his daughter spent part of this summer following the route of Austin’s great-great-grandfather in the Civil War, shooting video and working on a book project tentatively entitled Eli’s War.

They passed through Knoxville, and we managed to have dinner with them. Join us for a talk about war, history, and family.

This podcast was sponsored by Volvo Motors.

We caught up with independent journalist Michael Yon via satellite phone. Yon, who’s been covering Operation Arrowhead Ripper in the (former) Al Qaedah stronghold of Baqubah reports on how things are going, what he thinks will happen next, and his thoughts on the likely consequences of premature withdrawal.

This podcast is sponsored by Volvo Motors.

He’s played with everybody from Lonnie Brooks and Albert King to Terry Hill and Balboa. We talk to legendary guitarist Hector Qirko about music and life — and his work remastering some of the late Terry Hill’s lost tapes. We also listen to some tunes by Hector, Terry, and R.B. Morris.

Links mentioned in the show include Hector’s own site, the site of R.B. Morris, and the Terry Hill memorial page. Plus, the Lonesome Coyotes.

The Glenn and Helen Show: Hector Qirko on Music and Life

Once again we talked to our two military experts, Jim Dunnigan of StrategyPage and Pajamas blogger extraordinaire Austin Bay, about the war, Iraq, and America. As always, they have a lot of interesting information and perspective that you’re not likely to get anywhere else. Listen and learn!

Bill Frist isn’t Senate Majority Leader any more, and he says he gets more respect when he goes by “Doctor” than when he goes by “Senator.” But he hasn’t given up on changing the world, and he’s working — with Tom Daschle — on a bipartisan program called One Vote ‘08, aimed at helping the people that Paul Collier calls the bottom billion.

Since he’s from Tennessee, we also had to ask him what he thinks about the Fred Thompson campaign, and he sounded pretty positive.

Are we turning into a nation of wimps? Do boys need to be boys? Is there something parents and schools should be doing differently? We talk with British author Conn Iggulden, whose new book, The Dangerous Book for Boys, takes an old-fashioned positive look at boyhood, bravery, and the nature of risk, about those subjects and others — including the effect of modern parenting and education on military recruitment and the future of Western civilization. Is being optimistic old-fashioned? Plus, revelations about Helen’s misspent youth!

Music is “Status No” and “IWDWIST” by Todd Steed and the Suns of Phere. This podcast sponsored by Volvo Motors USA.

Traditional media are worried, and new media are excited. In both cases, it has a lot to do with where the advertising money is going, and where it’s not going. Nobody knows more about advertising than David Verklin, CEO of Carat Americas. Carat is the world’s largest independent media buying operation, and Verklin is also the coauthor — with Bernice Kanner — of Watch This, Listen Up, Click Here: Inside the 300 Billion Dollar Business Behind the Media You Constantly Consume. We talk to him about what’s happening now, what will happen next, and how the future of advertising might actually be more pleasant for consumers, as advertisers serve up ads based on things people are actually interested in.

Hewlett-Packard is now the biggest information technology company in the world, having surpassed both the $100 billion mark and IBM. How did it get there, over a period of time when so many promising companies fell apart? That’s the topic of Michael S. Malone’s new book, Bill and Dave: How Hewlett and Packard Built the World’s Greatest Company. We talk with Malone about the role of old-fashioned values in surviving new-era corporate challenges, and the difficulties that HP has had in sticking to its approach as times change. It’s a very interesting story, underscoring the fact that the most important part of every technology story involves the people behind the technology.

This podcast brought to you by Volvo USA. Music is Indistinguishable from Magic, by Mobius Dick.

The Glenn and Helen Show: Michael S. Malone on the Past and Future of Silicon Valley

Are we infantilizing teens to the point that we are raising a nation of wimps? Is adolescence extended so long that people have grey hair by the time they become adults? Robert Epstein, Director Emeritus of the Cambridge Center for Behavioral Studies in Massachusetts and author of The Case Against Adolescence: Rediscovering the Adult in Every Teen talks about these questions and more on today’s podcast. Epstein’s new book argues that adolescence is an artificial and unnecessary part of life that people are better off without. Find out how your teen’s exposure to school and Western media may be setting him or her up for incompetence, poor judgement and social-emotional turmoil. What can you do about it? Read the book or listen to the podcast to find out. Or go take Dr. Epstein’s competency test to find out how adult your teen is (or how adult you are) at www.howadultareyou.com or visit his website at drrobertepstein.com.

The surge is well underway in Iraq, and by some reports it’s already making a big difference. We contacted the blogosphere’s man-on-the-spot in Baghdad, Michael Yon, by satellite phone, and got his take on how things are going. Some important bits: The dispersal of troops out of big bases and into Iraqi neighborhoods has had a big impact — somewhat like the “community policing” approach in New York and elsewhere — and is generating a lot more intelligence and assistance from ordinary Iraqis. “Just being there makes a huge difference,” says Yon. But don’t expect overnight results: “The surge itself will go on well past summer,” and it’ll be Fall before we can tell if the trends are good or bad.

Listen to the whole thing — he’s also got some interesting takes on changing tactics and changing press coverage.

We talk to Rep. Duncan Hunter (R-CA) about why he wants to be President. We caught up with Rep. Hunter as he was getting ready to go to Iraq, and talked with him about the war, gun control, stem cell research and cloning, and much more. Plus, what his son learned serving in Fallujah.

Music is by Doug Weinstein’s acid jazz band, XTemp, from the album Bugsy’s World. This podcast is brought to you by Volvo USA.

We talked with Col. David Enyeart, Deputy Commander of Task Force Phoenix, the command dedicated to training the Afghan National Army and the Afghan National Police.

Col. Enyeart talks about addressing corruption, the much-anticipated Taliban spring offensive (which he calls “make or break for the Taliban”) addressing corruption and illiteracy, and the success in recruiting efforts. His conclusion: “This is a winnable war over here.”

Also on the call are Mark Finkelstein of Newsbusters, Andrew Lubin of On Point, Scott Kesterson of the Huffington Post, and John Noonan of Op-For.

Music is by Mobius Dick. This podcast was brought to you by Volvo USA.

It’s a brother-sister novelist act, as we talk to Claire Berlinski, author of last year’s powerful nonfiction book, Menace in Europe and now of a new novel of Internet dating and espionage, Lion Eyes — and her brother, Mischa Berlinski, whose novel Fieldwork, on missionaries, anthropologists, and murder in the hills of Thailand was published on the same day as Lion Eyes.

The conversation ranges from Internet dating and blogger romance, to the historical conflicts between missionaries and anthropologists, to the advantages of novel-writing over having to hold a real job. Plus, a year-later look at how the predictions in Menace in Europe — which is now out in paperback — have held up. (And last year’s interview with Claire Berlinski on that book can be found here.)

Music is “Black UFOs” and “Temptation” by Mobius Dick. This podcast sponsored by Volvo Motors USA.

John Ondrasik is Five for Fighting. Unless you’ve been living in a cave in Waziristan, you’ve heard his songs like 100 Years, Superman, and The Riddle. But the title cut to his latest album, Two Lights, turns out to come from a lunch with none other than blogosphere fave Victor Davis Hanson. We talk to Ondrasik about politics in the music business, what drives his songwriting, what aspiring musicians should do to make it, and more — including his new web-video-based viral charity enterprise, What Kind of World Do You Want? (Hear his music on iTunes here.)

Music is by Five for Fighting. This podcast is sponsored by Volvo USA.

Michael Yon is back in Iraq, where he’s been for over a month now. We caught up to him via satellite phone and got his views on the surge (it will be “unlike anything we’ve seen before”), the status of Iraqi security forces (they’ve made “tremendous progress” since he was there last year, but things are “still dicey”), evidence of Iranian involvement in terror attacks in Iraq, what the Iraqi public thinks, and much more.

Music is “Superluminal,” by Mobius Dick.

Pioneering forensic anthropologist Dr. Bill Bass is the inventor of the University of Tennessee “body farm,” made famous by Patricia Cornwell’s bestselling novel of the same name. Bass is also, with Jon Jefferson, a bestselling author in his own right under the name Jefferson Bass. We talk about forensic anthropology, their new novel Flesh and Bone, what CSI gets wrong, and how to have fun in Chattanooga’s gay bars.

Music: “Temptation,” by Mobius Dick.

People in the newspaper business seem awfully gloomy about the future right now, and with reason. But there’s one bright spot: Wall Street Journal publisher Gordon Crovitz, who describes himself as “the last person in the country with ‘newspaper publisher’ in his title who nonetheless is an optimist.”

We’ll talk about why he’s optimistic, about how the Wall Street Journal’s online edition came to be the fourth biggest newspaper in the country — bigger than the Washington Post or the L.A. Times — and how newspapers, and newspaper publishers, should be adapting to the new era. Plus, his view of blogging as “a great journalistic art form.”

Music is “Superluminal” by Mobius Dick. This podcast sponsored by Volvo USA.

Mitt Romney has officially declared his interest in the 2008 Presidential election. In this interview, he responds to a controversial YouTube video about his positions on abortion and other social issues, and talks about the war, gun rights, health care, research and development, and the role of the blogosphere in the 2008 election, among other things.

Music is by Mobius Dick. This podcast is brought to you by Volvo Automobiles.

Does marriage still matter? We talk to the Manhattan Institute’s Kay Hymowitz about her book, Marriage and Caste in America: Separate and Unequal Families in a Post-Marital Age. Hymowitz talks about the role of marriage in childrearing, wealth accumulation, and more — and how the unequal popularity of marriage is making the rich richer and the poor poorer.

Music is by The Have Nots.

It’s a Martha Stewart Christmas at the Glenn and Helen Show! Well, it’s a show about Martha Stewart at Christmastime, anyway. We interview law professor Joan Heminway about her book, Martha Stewart’s Legal Troubles, which comes out next week. We’re joined by Professor Ellen Podgor and talk not only about Martha Stewart’s legal troubles, but about the Sarbanes-Oxley bill, white-collar crime, and the criminalization of nearly everything.

Christmas music by Audra and the Antidote.

You hear a lot about suicide and depression during the holiday season. We talk with Dr. Eric Caine, head of the Department of Psychiatry at the University of Rochester and a consultant to the President’s Commission on Mental Health, about suicide and suicide prevention. Do antidepressant drugs raise the risks of suicide or lower them? What preventive steps work, and what should general medical practitioners, or concerned friends and family do? Dr. Caine offers lots of answers, and interesting discussion.

Music is by Todd Steed and the Suns of Phere.

In this episode, we take listeners’ questions and answer them — including a few that were emailed in audio form, making it a sort of call-in show. Tune in and learn!

Most people agree that political divisions have gotten worse in recent years. Orson Scott Card’s new novel Empire looks at whether and how those divisions might lead to an American civil war in the near future. It’s a thriller novel, a la Tom Clancy, but it’s also a cautionary tale. We talk with Card about the novel, the political scene, and what Americans should be doing.

With the Democrats back in Congressional majority, there’s more talk of health care regulation, and perhaps even a Canada-style socialized-medicine approach. Dr. David Gratzer is the author of a new book, The Cure: How Capitalism Can Save American Health Care, and — as the foreword by Milton Friedman might suggest — he suggests a very different approach.

Are old media doomed to be replaced by new media? Or is there more likely to be some sort of symbiosis?

Lots of people wonder about that, and we took the opportunity to talk with Angela Diegel and David Dunbar from Popular Mechanics when they came to town. Diegel is the magazine’s online director, while Dunbar is the Executive Editor.

The Democrats have taken the House and, it appears, the Senate. Donald Rumsfeld has resigned, to be replaced by Robert Gates. What’s next for the War on Terror and U.S. national security?

The American media have been obsessed with this week’s Congressional elections, but the foreign media have been just as interested. We caught up with Mark Little and Ken O’Shea of Irish TV’s “Primetime,” a show that’s a bit like our “Nightline” — to see what interests them about the American elections, and what has surprised them about their reporting. Plus, a look at the effect of American portion sizes on Irish waistlines.

Music is “Tom Brokaw,” by The French Broads.

Mark Warner looked to be the strongest Democratic contender for President in 2008 except for Hillary Clinton.

Guns and gun control are a big issue as the 2006 elections loom.

How’s the Army doing in the Long War? Pretty well, according to Dr. Francis Harvey, Secretary of the Army, who notes that reenlistment is at a 9-year high and that recruitment is doing very well.

Helen couldn’t make it — it was a bit late for her — but I caught up with milblogger Scott Koenig, better known as Smash, when he passed through Knoxville last week. Since he’s a celebrity blogger, I took along a portable recorder and managed to cadge an interview.

With the elections only a month away, we talk to John Fund, Wall Street Journal writer and author of Stealing Elections: How Voter Fraud Threatens Our Democracy.

Michael Totten is an independent blog-journalist who has covered the Middle East with support from his blog readers. He’s reported from Libya, Tunisia, Iraq, Turkey, Lebanon, Israel, and Egypt — and he’s now planning another trip.

We talk to Michael about what he’s observed, and what it’s like to make a career-change from blogger to professional blog-journalist. Plus, reviews of Libyan restaurants!

%%AUDIO=glenn_helen_show/20061001-MichaelTotten.mp3|The Glenn and Helen Show: Michael Totten on Independent Journalism and the Middle East%%

Jim Geraghty talks with us about his new book, Voting to Kill: How 9/11 Launched the Era of Republican Leadership. Geraghty talks about “security voters,” the Democrats’ problems and what they can do to address them, and whether Hillary can save the Democratic Party. Plus, Bush’s own problems with his “war base.”

Music by The Mr. T Experience.

%%AUDIO=glenn_helen_show/20060918-geraghty2.mp3|The Glenn and Helen Show: Jim Geraghty on Politics and National Security%%

The House and Senate have passed landmark legislation imposing transparency on earmarks in the appropriations process. The Senate is also looking at the John Bolton confirmation, and legislation aimed at trying terrorists before military tribunals.

We managed to catch up with Senate Majority Leader Bill Frist this morning and talk about all of these subjects, plus Frist’s new Blogging for Bolton venture and the joys of blogging and podcasting.

%%AUDIO=glenn_helen_show/20060914-Frista.mp3|The Glenn and Helen Show: Bill Frist on Porkbusting, the Bolton Confirmation, and the Joys of the Blogosphere%%

Transcript follows:

With Senator Bill Frist retiring and leaving his seat open, Tennessee is one of the handful of states where Democrats have a chance of picking up a Senate seat this fall, making it crucial to Democratic efforts to recapture the Senate. Earlier this year we interviewed the Democratic candidate, Rep. Harold Ford, Jr., of Memphis.

Now we’ve got the other side of the story, with Republican candidate Bob Corker. Corker answers questions on Iraq, the war on terror, the Second Amendment, immigration, and more. Plus, questions about earmarks and pork!

%%AUDIO=glenn_helen_show/20060912-Corker.mp3|The Glenn and Helen Show: Republican Senate Candidate Bob Corker%%

Our podcast on divorce with lawyer Lauren Strange-Boston was popular enough that we thought we’d follow up with some non-legal issues. We talked to Russell Friedman, relationship expert and author of Moving On: Dump Your Relationship Baggage and Make Room for the Love of Your Life about, well, pretty much what the book title suggests.

%%AUDIO=glenn_helen_show/20060905-Friedman.mp3|The Glenn and Helen Show: Russell Friedman on Moving on After Divorce%%

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.

%%AUDIO=glenn_helen_show/20060829-PosnerOnTerror.mp3|The Glenn and Helen Show: Richard Posner on Terror and the Constitution%%

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 —