August 25, 2004  ·  Richard Posner

A further thought, prompted in part by the release yesterday of the Schlesinger panel’s report of its investigation of the Abu Ghraib scandal.

Under the present system of intelligence, the CIA, although it is not the largest intelligence agency, is the leading agency, and its director is understood to be the government’s senior intelligence officer; he briefs the President, and is responsible for keeping the President and the other top officials informed. If a National Intelligence Director is layered on top of the CIA, its director, and the other agencies, as recommended by the 9/11 Commission, and if in addition, as suggested by Senator Roberts, the CIA is broken up into three parts, who will brief the President? The NID will be too busy supervising 18 agencies, which will mean worrying about spy-satellite launchings, creating “back doors” to encrypted Internet communications, monitoring the Coast Guard’s intelligence activities, etc., etc. So will the responsibility for keeping the President informed devolve on the head of one of the CIA fragments? But won’t he be too low-level an official to be able to marshal all the intelligence resources of government?

The basic problem with the recommendations is the attempt to solve managerial problems with structural solutions. This was recognized by the Schlesinger panel. Its report explains that the Abu Ghraib interrogation fiasco was the result of specific mistakes in planning, analysis, training, deployment, supervision, and personnel, made by specific individuals up and down the chain of command, who are named. The mistakes were not the product of a deficient structure. For the most part, this is likewise the case with respect to the failure to detect Al Qaeda’s 9/11 plot and respond to the attacks. Inadequate screening of visa applicants, deficiencies in building-evacuation plans, misunderstood rules regarding sharing of intelligence between criminal investigators and intelligence officers–the list of remediable management failures goes on and on, but the closest to a structural failure that I discern is the lodging of domestic terrorist surveillance in the FBI, which seems to have a deep-seated prosecutorial mindset that is inconsistent with effective preventive surveillance of potential terrorists.

  • Anonymous

    Instead of a structural change, perhaps someone should talk to Sibel Edmonds. Otherwise, they might have well just rounded up the surviving members of the Warren Commission to investigate. If we’re not willing to examine all the evidence, then the whole process is a charade.

  • Nate Johnson

    Your post makes the common (and incorrect) assumption that there is a way to keep the law and government working for the people as technology progresses. Like all the rest, this empire will also fail.

    Instead of repeating this again, it is time for the individual to be completely empowered, completely free of authority. The word “anarchy” conjures up scary thoughts to many, but it is the best way forward that I have found in all of my searching (see

    Otherwise, why doesn’t God just come down and be the next President? BECAUSE He/She/Them KNOW that letting us figure it out for ourselves (each individual) with free agency to make all of our own decisions is the best way. Sounds like anarchy, doesn’t it? Back to where we started, right?

    It can and WILL work very well for those that “get it.” Government will fail to keep pace and WILL fail the people… very soon. Adapt or do not adapt, that is each individual’s choice.

    All of this is purposely DESIGNED to teach us to stop seeking to limit OURSELVES by adding more and more controls (laws and authority). You can learn this lesson or you can not.

    Anarchy is inevitable. You can fight it and lose, or you can work to make the transition easy and the benefits permanent and enjoyable for as many people as possible.

    -N888 “Money is the Problem, Giving is the Answer”
    [all of my work is PUBLIC DOMAIN, is yours? I give my work freely to everyone for any use whatsoever. ANY restrictions, including copyright, copyleft (GPL) only slow the flow and usefulness of information. Information IS FREE, please stop fighting it.]

  • Tom Holsinger

    With rare exceptions, citizens aren’t our foreign terrorism threat. Resident aliens – legal and illegal – are the threat. The Supreme Court long ago ruled that resident aliens are entitled to the same constitutional protections as citizens. This was done for expedient reasons – letting police and prosecutors deny constitutional protections to aliens imperiled the same protections for citizens. But “[t]he Constitution is not a suicide pact.” The lives of citizens are now directly threatened by resident aliens, while the constitutional rights of citizens are imperiled by security measures created to protect against resident aliens. The law should change to reflect these developments.

    The Department of Homeland Security would be more effective, without harming citizen rights, if aliens lack full constitutional protection, for offenses committable only by aliens, which it has exclusive jurisdiction to prosecute. State and local police, the FBI, and state and Justice Department prosecutors, would have to give aliens full constitutional rights during investigation and prosecution of ordinary offenses, as citizens can be charged with those too. But Homeland Security law enforcement officers and prosecutors wouldn’t have to do so for offenses under laws which apply only to aliens.

    The concept would require enactment of new criminal legislation which applies only to resident AND non-resident aliens (i.e., extra-territorial jurisdiction could be asserted), and need not be confined to terrorism. There could be a Foreign Terrorist Act, a Foreign Contraband Act (drug-smuggling), etc., all part of a new federal code with its own rules of evidence, procedure, etc. Which would include trial only by a court, not by a jury.

    While there would be complications when a given investigation turns up citizen involvement, those would be much easier to deal with once the major part of the problem – full constitutional protection for resident aliens – is addressed.
    We wouldn’t need new courts. Existing administrative law judges would handle ordinary immigration problems. Existing federal judges would hear most charges brought by Department of Homeland Security prosecutors save possibly for those assigned to a new federal �security court� advocated by some (see, though the proposed special military tribunals for non-resident aliens might also try cases involving resident aliens who are enemy combatants.

    Many other issues would have to be resolved (such as getting the Supreme Court to overturn 100+ year-old precedents), but IMO this is legally feasible. It is unlikely to be politically feasible until foreign terrorists kill a lot more Americans at home.

  • Alex

    Tom – That is possibly the most crazy idea I have ever heard. For a start the 5th amendment specifically states “No person” there is no way you can squirel this to make non-US citizens non persons. Even if you could do this (through a constitutional amendment) then you would almost certainly undermine the extradition arangements that the US has with other countries since what country will send it’s citizens to a court where they are not certain of a free or fair trial.

    You make reference to “enemy combatants” this is another typical US piece of stupidity to get arround your legal obligations under the Geneva convention, your statements on how to try non-Americans try to remove the US even further from international standards of fair trials.

    The proponents of these draconian measures would do well to remember that of the three largest terorist incidents on US soil (9/11, Federal Building and World Trade Center bombing) two of these were perpertrated by US citizens; by your logic it is US citizens who should lose their right to trial by jury not aliens.

    As a US citizen living in the UK, I have seen what can happen when living with terrorism during the troubles in N. Ireland (oft funded by US citizens I might add). The sus laws, internments and miscariges of justice are shameful blots on our nation, something the US should learn from not try and repeat.

  • Steve Lincoln

    Judge Posner -

    Your question about who will brief the President has an easy answer — in the Bush Administration, at least. The Department of Defense will bypass the CIA and National Security Advisor and pass information directly to the Office of the Vice President, and the Vice President will tell the President whatever he believes the President needs to know.
    However, if the information is later proven faulty or misleading, the Administration will let the CIA Director take the fall, because he’s expendable.

  • Tom Holsinger


    You assume that American courts use words in their �ordinary and common sense� in decisions involving public policy. Here are some good, bad and current examples.

    Bad – Korematsu . Good � the 1962 reapportionment decisions which saved the federal system � the ones which required that state legislative districts be apportioned only by population, and be reapportioned every ten years. Some state legislatures, particularly in the South, had not been reapportioned in scores of years. This and the widespread use of geographic districts for state senates was destroying the ability of state legislatures, and state governments, to respond to public needs. Enormous pressure was developing to seek solutions for state problems at the federal level, in Congress, due to this state government paralysis. The Warren Court�s reapportionment decisions revived the effectiveness of state governments and so saved the federal system. But the reasoning of those decisions was legal crap � in particular they played games with words.

    Current � there is no way to square the First Amendment with the ruling upholding the McCain-Feingold election finance act. For a simple example of how the Supreme Court ignores the ordinary and common sense of terms, compare the recent Hamdi and Rasul (Guantamano) decisions in applying the habeas corpus statute (different from the constitutional right to habeas corpus). The statute requires that the petitioner seek relief from the federal district court in whose geographic jurisdiction he/she is held. Hamdi didn�t and his petition was denied on that grounds. He was told to refile it in the district court where he is held.

    Rasul, being at Guantamano, was not held in the geographic jurisdiction of any federal district court, and sought relief in one within a state of the U.S. The Supreme Court held that he could seek relief under the habeas statute under terms & conditions to be determined on remand. I.e., an American citizen � Hamdi � had to comply with the letter of the habeas statute but non-citizen (and non-resident) Rasul did not.

    Furthermore the Supreme Court in Rasul made no effort whatever to reconcile this inconsistency. They just grandly ignored it.

    The reason is obvious to attorneys � the Supreme Court majority in Rasul, as often happens, decided what result they wanted first, and then wrote a decision to get that. Its reasoning and misuse of ordinary terms in doing so was pretty rank, which sometimes but not always happens in such instances. Result-oriented decisions tend to have worse reasoning than those based on more dispassionate analysis.

    What this means in the context of my proposal is that plain meaning of the 5th amendment concerning trial by jury for non-citizens, and the hundred year-old precedents concerning trial by jury for non-citizens, are not a �legal� barrier. The Supreme Court can hold otherwise, and grandly ignore both the Constitution and its own precedents in doing so, just as it did in Rasul.

    The political feasibility of this is another matter, which is why I said it can�t happen until a lot more Americans are killed at home by another 9/11- scale attack. As Finley Peter Dunne�s Mr. Dooley said, �The Supreme Court follows th� ilection returns.� Ask Mr. Korematsu.