August 24, 2004  ·  Richard Posner

Many excellent comments on my posting. I can’t respond to all of them, but I do want to respond to two of them.

One commenter said (I’m paraphrasing): why would breaking up the CIA be a big deal? It accounts for only 12 percent of the national intelligence budget. What that overlooks is that high-tech intelligence agencies, like the NSA (surveillance of communications worldwide) and the NRO (develops and launches spy satellites), are very expensive because they are capital-intensive as well as requiring substantial staffs, but much of their intelligence output is input into the analytical and operational divisions of the CIA, the FBI’s counterterrorist division, and the State Department’s Bureau of Intelligence and Research. It is important not to disrupt those analytical and operational activities.

It’s also important to recognize the importance of the phenomenon that economists refer to as “path dependence”: where you end up may depend on where you started from, rather than on optimal system design as an original matter. If we were starting afresh, we might well configure the intelligence agencies differently. But imagine the transition costs involved in a from-the-ground-up reorganization of our 15 intelligence agencies.

The second comment I want to respond to may seem unrelated to the first, yet turns out to be closely related. This commenter takes issues with a statement that I once made to the effect that I thought the Supreme Court had made the correct decision in the Korematsu case, when it refused to invalidate an army order, approved by President Roosevelt (and by Earl Warren, who at the time was the governor of California), removing persons of Japanese extraction from the west coast in 1942, shortly after Pearl Harbor. In hindsight, it is apparent that the order was erroneous–that the Japanese-Americans did not pose a threat to the nation and that the order was influenced by racism. But the wisdom of hindsight is treacherous. In March of 1942 when the order was issued, just three months after Pearl Harbor, there was not only fear that Japan would attack the continental United States, but also a need to demonstrate resoluteness in a war for which the nation was not prepared.

The wisdom of hindsight infected the 9/11 Commission’s report and the reaction to it by Senate Roberts and others. Hindsight is omniscent. In hindsight we know that Al Qaeda planned to attack the United States by infiltrating its operatives to learn to fly commercial aircraft and take over and crash those aircraft into buildings. The natural reaction is, since we know it now, why didn’t we know it then? We must have been asleep at the switch, and so we have to revamp our intelligence structure from the ground up. There are two non sequiturs here. First, that if you’re surprised by something, it shows you were culpable. Second, that if there is a system failure, the solution is to change the table of organization.

  • Tom Holsinger

    Judge Posner,

    IMO the domestic political considerations of President Roosevelt’s decision to evict Japanese & Japanese-descended residents of the West Coast were not primarily “need to demonstrate resoluteness”. California historian Kevin Starr, as an example, feels FDR’s primary concern was fear that he might have to use federal military force to protect the Japanese from citizen mobs incited by an early 1942 racist newspaper campaign of the Hearst chain.

    FDR knew he could not, politically, use federal troops for that and that the California state & local authorities would do nothing either. So he risked mob violence against Japanese if he did nothing, but stood to gain something politically by evicting the Japanese.

    I first learned of this from my mother, who lived here all her life. She told me Californians were very, very racist in her youth, and what the Hearsts were up to then. This fits with my own reading of the period. Starr’s point rings true.

  • David

    Thank you for your quick response, Professor Posner. That’s one of the nice things about blogs (with comments boxes). Someone can ask a question of a person they might never have the chance to meet, and if they’re lucky, they’ll get a prompt answer.

    I still remain puzzled as to how a decision that was (1) based upon erroneous facts about the threat of Japanese-Americans and racist ideas about them, and (2) poorly argued for in a majority opinion, could find the resources to be “correctly decided”. A court decision based upon your stated reasoning would not exactly be Korematsu itself. It would be a decision similar to it in subject matter, but different in matters of fact, and I take it, in legal argumentation.

    I’m also not sure how needing to demonstrate resoluteness in wartime is properly a concern of Supreme Court Justices. Isn’t that the proper concern of the executive or legislative branches?

    Thanks again. I hope the discussion of such important matters continues.

  • Rolo Timassie

    Korematsu is not even close to being a close case. There was no individualized suspicion of Korematsu based on any factor other than pure racism. Justice Jackson got it exactly right, in dissent:

    Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

    Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.

    A citizen’s presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four — the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole — only Korematsu’s presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

    Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that ‘no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.’ Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. . . .

    My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt’s evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner.

  • Eric Muller

    Judge Posner, even a quick examination of prominent people’s actual opinions and perceptions at the time of the exclusion of Japanese Americans and at the time the Court decided Korematsu reveals that they could see the racism and needlessness of the exclusion program. No hindsight necessary.
    See my blog post on the point at IsThatLegal.
    Your hindsight justification just doesn’t square with the facts. You might wish to think that the wrongfulness and racism in the order emerged only in the fullness of time. But that’s just not so.

  • Legal Diva

    Judge Posner,

    Your point about the wisdom of hindsight is universally applicable — To everything which invokes this omniscient response — and should not be parsed up by irrelevant application to superfluous decisions. The only truly useful re-examination of this would be in reference to what we will do in the future, not what we’ve done in the past. And it’s true that we are, again, feeling like we were asleep at the switch. Goes right along with “Fool me once, shame on you. Fool me twice, shame on me.” But this is only going to be relevant if we suffer the exact same surprise; Terrorists commandeering commercial aircraft and flying them into buildings. That isn’t likely to happen.
    The wisdom of hindsight is an infection,
    cured only by the voice of reason. Thank you.

  • Nate

    Judge Posner,

    The two ‘non sequiturs’ at the end of your post are right on and refreshing to see. Your comments on the “solutions” proposed by the 9/11 commission seem to hit at the inability of humans to grasp probabilities. What happened on 9/11 was of such low probability that ex ante taking steps to prevent the attack would have seemed unreasonable. The attacks have also altered our perception of the likelihood of another attack. Terrorist attacks on the scale of 9/11 are extremely small probability events (and still are), but I think we believe they are now high probability events. This results in your second non sequitur: system failure = change the table of organization.

    The problem with the Commission’s report, along with the one’s you stated, is that it is providing specific recommendations that solve specific types of terrorist activity. But this type of thinking does not help solve future unknowable events. Broad knowledge, as opposed to specific knowledge, is the best way to anticipate the future.

    It seems like in public domain, high impact-low probability events result in more policy action than low impact-high probability events.

  • Jardinero1

    Right on Nate. The question I have to ask is: “Are we not over reacting?” or maybe “Are we sufferring from mass-hysteria?”
    Maybe the system works pretty well. Maybe we don’t need to revamp the entire intelligence apparatus, trash habeas corpus, and trample all our other civil liberties. Maybe all we really need to do is tweak the edges to keep this particular low probability event from recurring.
    The other fault lies with the public misconception that terrorism is the enemy. Terrorism is the tool of the enemy not the enemy itself. There are an infinite number of ways to terrorize a population and the next incident will be just as surprising as the last on.
    A cursory glance at the scribblings of the users of terrorism will reveal what we are really up against. Try “The Time of Killing, An interview with an Al Qaeda fan” Harper’s, July 2004. Until we face up to reality and deal with the enemy himself and not his means all the reform and reorganization is just plain, dangerous(to a free society) self flagellation.

  • Allan Schiffman

    Judge Posner,

    Your response to my “it’s not just about the CIA” comment had two main points: 1) the CIA is the key component of the intelligence establishment and 2) a plan like Senator Robert’s to reorganize the 15 agencies would be extremely disruptive.

    The evidence appears to indicate that the CIA is important but not valuable. The CIA’s failures of analysis are too numerous to exhaustively list here. It’s not hindsight to point out that well before their most recent failures in Iraq, they failed to correctly analyze the progress of North Korean ballistic missile programs, Indian nuclear weapons programs, Libyan nuclear weapons programs, the Iranian revolution, the Soviet strength in the 80′s, the significance of Jihadists prior to ’94, etc. The record shows an inability for CIA analysis to be relevant to US strategic interests.

    WRT CIA collection, it seems clear that the agency had no significant assets in North Korea or China in the 1950s, in North Vietnam during the 1960s and early 1970s, in the Soviet Union during the entire Cold War, in Iraq in the first Gulf War, or in Jihadist organizations during the 90′s.

    WRT CIA operations, “covert actions” performed by the agency have too frequently been major failures and public relation disasters (not to mention yielding “blowback”). Supporters of the CIA suggest that their successes are unheralded but this claim is risible: in the credit-hungry and leak-ridden environment inside the beltway, no success, however small, is unheralded for long. Note, for instance, the heavily publicized role for CIA irregular forces in the action against the Taliban, and for missile-wielding Predators in Yemen.

    Finally, to your other point, disruption. A preservationist argument can always be made, no matter how bad the current situation. The question is not what disruption will be caused by change, but is change required? No doubt you would accept that a drastic reorganization of the intelligence services could be required in some circumstances, despite high transition costs. Are these the circumstances? I suspect they are.

  • Steve Lincoln

    Judge Posner -

    With regard to your comment about the Korematsu case being correctly decided by the Supreme Court, are familiar with historian Peter Irons’s 1982 book, Justice Denied, which described how the Justice Department misrepresented the facts in its Supreme Court brief, deleting a statement in an earlier draft of the brief that would have acknowledged that the FBI had concluded that American of Japanese descent did not pose a security threat to the West Coast?

  • joe tomei

    Dear Judge Posner,
    Thank you for responding to my question about Korematsu. I do wonder about the notion that this hinges on the wisdom of hindsight. The decision was reached in 1944, so the Supreme Court necessarily should have thought about what had taken place over that time. If the courts shouldn’t look at the facts that are available to them (and it should be noted that the facts were altered by the government to protect their position) what should they look at? It seems that, by your logic, the Court can’t rule on any action arising from Executive Order 9066 because that would partake of the wisdom of hindsight.