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August 8, 2005
Judicial Absurdities Meet Common Sense

A federal judge in Seattle, Judge John Coughenour, gave a ludicrously light sentence to a would-be terrorist that attempted to sneak into the US to carry out a bombing plot at Los Angeles International. Even worse than the sentence, however, was Coughenour's accompanying lecture to the Bush administration on the proper role for the judiciary in addressing terrorism -- after Coughenour had just demonstrated his essential cluelessness about its nature.

Eric Posner and Adrian Vermeule take apart Coughenour's legal reasoning as well in a Washington Post column this morning:

British and American traditions are two-sided: They acknowledge that governments have an obligation to protect people's lives as well as their liberties. No nation preserves liberty atop a stack of its own citizens' corpses, but if one did, it would not be worth defending.

The spurious assumption behind both cliches is that whatever package of civil liberties happens to exist at the time a terrorist threat arises must be maintained at all costs; adjustments that reduce liberty are bad even if they produce greater gains in security, potentially saving people's lives. This is a virulent form of the fallacy of the status quo -- that whatever exists must be good. In fact, the balance between security and liberty is constantly readjusted as circumstances change. A well-functioning government will contract civil liberties as threats increase. A government that refuses to adjust its policies has simply frozen in the face of the threat. It is pathologically rigid, not enlightened.

The two cliches about terrorism are familiar from debates among commentators and politicians. What is new and surprising is their citation by judges as self-evident truths. Judges do badly when they appeal to speculative causal theories about terrorism or to the romantic ideals of civil libertarianism. Both are incompatible with the kind of balancing that is so much a part of the judicial function. That ideals have a tendency to explode on the rock of fact was spectacularly demonstrated in Britain, where terrorist carnage occurred just a few months after the detainees in Lord Hoffman's case were released under legal compulsion. It is too soon to tell whether there was a causal connection between the two events, but Lord Hoffman's casual dismissal of the threat to citizens' lives now appears grotesque.

In fact, America has often made adjustments during wartime to its civil liberties in order to protect its citizens. Some of these amount to common sense precautions; others, like the Japanese internment camps, cause decades of regret. As Posner and Vermeule note, the elected representatives of the people have to have some leeway in adjusting policy and access to meet security threats, or else any vulnerability once identified will be open to repeated exploitation. Curfews, rationing, limited access all have long histories for Americans during wartime, and all ended after the hostilities themselves ceased. In this case, the end may prove more murky than in World Wars I and II, but no less so than Korea or the Civil War. The notorious suspensions of habeas corpus in the latter example were rescinded shortly after Appomattox.

We have to maintain our flexibility to effectively protect America against attack and catch and/or neutralize terrorists before they can strike. Judge Coughenour's approach asks that we wait until they reach American soil before doing anything about them, and then give them all the rights that they despise in handling their cases. In the meantime, those we don't catch will busy themselves with their mission of killing American citizens. It sounds like a great way to lose the war, and if that's the kind of thinking we can expect from the federal judiciary, then Coughenour provides the best counterargument to his own screed. Posner and Vermeule come in a close second.

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Posted by Ed Morrissey at August 8, 2005 7:30 AM

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» WaPo Performs Takedown on Coughenhour from Macho Nachos
In a surprisingly pleasant editorial in the Washington Post (Courtesy of CQ), Eric Posner and Adrian Vermeule take Judge Coughenhour to task for his ridiculous lecture to the Bush administration about their terrorist detention policy: Last week U.S. Di... [Read More]

Tracked on August 8, 2005 11:08 AM

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