This commentary originally appeared in The Responsive Community, October 2002.

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The Truth About Our Institutions

 

Judge Posner sees the question of civil liberties as a simple balancing of a "public-safety interest" and a "liberty interest" ["The Truth about Our Liberties," Summer 2002]. He insists that it is "common sense" that we should surrender rights given the situation we now face. But he neglects the crucial question of incentives, a strange omission for a scholar who has spent much of his distinguished career reminding us of their importance.

The issue before us today is not simply whether civil liberties should be curtailed, but whether executive officials should be given increased power without increased accountability. Institutions, and in particular government institutions, have inherent incentives to try to increase their authority while decreasing their accountability. It is no accident that the present administration has simultaneously sought greater enforcement powers, promoted secrecy vigorously even in areas unrelated to national defense, and attempted to make as much law as possible without congressional consultation. And it is no accident that the same administration has attempted to justify its secrecy, its consolidation of power, and its unilateralism by manipulating a climate of free-floating fear.

Power without accountability leads to arrogance and corruption, and these lead to errors of judgment. Government officials are agents of the people, and like all those who wield power on behalf of others, they have natural incentives to abuse their authority if there are not sufficient checks and monitoring devices. We have seen this in the recent corporate scandals, where lack of managerial accountability led inevitably to fraud, self-dealing, and mismanagement. An administration composed largely of businessmen is unlikely to be any more impervious to the law of bad incentives.

When government officials act in secret, when they arrest individuals without disclosing their identities or hold them indefinitely and deny their right to an attorney or to judicial review, they make it easier to cover up their mistakes. And when government officials are utterly convinced of their rectitude and view others as mere hindrances to the pursuit of the nation's interests, they are more likely to succumb to the perils of groupthink, self-delusion, and hubris. This administration has been particularly emphatic about its sense of moral certainty and about the dubious patriotism of those who dare criticize it. That should be a warning sign to anyone.

Moreover, the notion that "we" must surrender our civil liberties to preserve our safety glosses over the fact that the burden of deprivation is not evenly distributed. Judge Posner will not be rounded up secretly and held without access to counsel. The brunt of the nation's fears will be borne by others. Governments tend to overreach against those who have least power to object–hence the blanket closing of immigration hearings, the secret roundup of aliens, and the indefinite detention of Muslims. Institutional incentives lead governments to hassle not the most dangerous but those most accessible to hassling and those the public cares least about.

Civil liberties and democratic accountability might seem rather inefficient means of governance, but they have considerable advantages. Forcing government officials to explain and justify their actions to Congress and to an impartial judiciary keeps them grounded and honest. To be sure, civil liberties do not exist merely to secure democratic accountability; that is why increased accountability does not always justify increased power. The government should not be allowed to round up Muslim citizens for indefinite detention even if Congress and the voters approved it. But weakening individual rights eliminates a crucial source of restraint on executive power, and unrestrained power usually leads to arrogance and bad judgment. Thus we shouldn't assume that maintaining civil rights and democratic accountability necessarily decreases our safety. To the contrary, it may secure better decision making and greater security in the long run. Suppression leads to fear, fear leads to hatred, and hatred leads to violence and instability. Unwise attacks on other countries may provoke countermeasures that harm our own citizenry. A government untethered from the checks and balances that individual rights and democracy provide may make serious errors of judgment that lead to more deaths and more human suffering, both for our own people and for people in other lands.

Emergencies create dangers, but they also create possibilities for amassing power. When the perils we face are, in Judge Posner's words, "diffuse" and "shadowy," those in power will ask for as much as they can get, including prerogatives they sought long before the emergency appeared. Yet it is precisely when the threat is most uncertain and diffuse that the balance between liberty and security that Judge Posner celebrates becomes hardest to fathom and the problems of overreaction and opportunism become greatest. For pragmatic reasons, then, it is best to require the strongest showing before the mechanisms of accountability are dismantled and the executive is given free rein to arrest, incarcerate, and spy upon the people at will.

It might be objected that the balance should be struck differently in times of emergency, as we face now. But we have no idea when this state of danger will end, or when the war on terrorism will be concluded. The Cold War spanned nearly half a century; what we do now under the name of temporary necessity is very likely to become business as usual. Other nations have not had much success with the declaration of emergency powers. By removing the safeguards of accountability they have often spiraled into greater and greater acts of arbitrariness and tyranny.

Judge Posner insists that we should not be concerned that officials will "exaggerate dangers to the nation's security," because "the lesson of history" points in the opposite direction. "It is because officials have repeatedly and disastrously underestimated these dangers," Posner asserts, "that our history is as violent as it is." He offers as examples Southern secession, Pearl Harbor, Soviet espionage during the Cold War, urban rioting in the 1960s, the Tet Offensive, and the Iranian revolution, as well as September 11. But Judge Posner does not seriously contend that these episodes arose because of too much protection for civil liberties. There is no evidence that Southern secession was caused by an excess of civil liberties–Southern states held human beings in slavery, ruthlessly enforced the rights of slaveowners, and regularly censored the speech of those who disagreed with their policies. The urban riots of the 1960s were not caused by ten years of civil rights progress, but by three hundred years of racial oppression. Our lack of preparedness for Pearl Harbor resulted from failures of diplomatic and military intelligence overseas, not too many writs of habeas corpus or an overindulgent constabulary. No one thinks that Miranda v. Arizona caused the Tet Offensive or the Iranian revolution. The problem of domestic espionage during the Cold War began well before the great civil liberties innovations of the Warren Court, so it can hardly be blamed on civil libertarians.

Posner's argument overlooks the fact that government officials might systematically overestimate the dangers that come from accountability and civil liberties–because accountability and civil liberties interfere with their power–while systematically underestimating dangers to the nation that arise from other sources and causes. Indeed, this seems to be the real lesson of our history. We should not blame civil liberties for our lack of preparedness, but we can blame officials for routinely using threats of emergency as an excuse to curtail domestic civil liberties. Because of the fear of blacks, Southern states wreaked havoc on the rights of Americans, black and white. Because of a racist suspicion of a Japanese fifth column, our country created its own set of concentration camps. Because of the fear of Communism, the lives and fortunes of many good people were destroyed in an orgy of hysteria. And all of this was done in the name of emergency, in the name of America, in the name of protecting our way of life.

Like Judge Posner, I consider myself a pragmatist, one who, in his words, regards law as "a human creation rather than a divine gift." I think his views insufficiently pragmatic, for he fails to recognize that our institutions will rot and decay without the checks and balances that keep us a free society. He worries about the mysticism of civil liberties. I worry about the mysticism of authority.

 

Jack M. Balkin

Yale Law School