Judge Richard Posner is a leading commentator on national security and terrorism. He has recently produced an overview of the constitutional aspects of national security law, (1) as well as a string of books on the optimal design of intelligence agencies and the political and institutional problems that block access to the optimum; (2) his work on catastrophes includes an analysis of the risks of catastrophic terrorism. (3) It thus seems fitting to examine his most prominent judicial encounter with themes of security and liberty: the litigation in which a group of civil liberties organizations--the Alliance To End Repression--obtained consent decrees to constrain the antiterrorism efforts and investigative practices of the United States and the City of Chicago, only to have the consent decrees narrowly construed or modified by Judge Posner and his colleagues. Two major decisions resulted ("the Alliance To End Repression cases"), one in 1984, (4) the other in 2001. (5) I focus on the 2001 decision, which contains a more expansive discussion of Judge Posner's views on security and liberty.
I begin with a positive claim. The Alliance To End Repression cases are best understood as a judicial contribution to a larger trend in national security law: the loosening of constraints on executive power set in place after Watergate. Turning then to normative questions, the largest claim of the Alliance To End Repression cases is that, as of 2001, increasing the risk of executive abuse of civil liberties is the inevitable byproduct of moving toward the best overall set of security policies. Executive abuses are just a cost; they should not be minimized, but optimized. This approach--what we may call the tradeoff theory of security and liberty--is conceptually problematic but has pragmatic appeal. It is thus authentically Posnerian.
Finally, and more broadly, I use the Alliance To End Repression opinions to illustrate the strengths and weaknesses of the pragmatic approach to adjudication that Posner the legal theorist has championed. The 2001 opinion that liberated Chicago officials to take more aggressive antiterrorist measures seems not only forward-looking but almost prescient in light of the events of 9/11. However, the opinion may not have had an adequate basis in then-extant evidence about terrorist threats; there is a whiff of armchair empiricism about it. Relatedly, the opinion embodies a style of judging that may well misfire in the hands of judges of average competence. Despite these concerns, Judge Posner was undeniably right, in hindsight, and being right is the ultimate pragmatic virtue.
Here is Judge Posner's arresting description of the historical background of the Alliance To End Repression litigation:
From the 1920s to the 1970s the intelligence division of the Chicago
Police Department contained a unit nicknamed the "Red Squad" which
spied on, infiltrated, and harassed a wide variety of political groups
that included but were not limited to left- and right-wing extremists.
Most of the groups, including most of the politically extreme groups,
were not only lawful, and engaged in expressive activities protected
by the First Amendment, but also harmless. The motives of the Red
Squad were largely political and ideological, though they included a
legitimate concern with genuine threats to public order.
Demonstrations against U.S. participation in the Vietnam War that
climaxed in the disruption of the Democratic National Convention in
Chicago in 1968, race riots in Chicago and other major cities in the
same period, and the contemporaneous criminal activities of the Black
Panthers, the Weathermen, and Puerto Rican separatists, all against a
backdrop of acute racial and Cold War tensions, political
assassinations (notably of President Kennedy, Senator Robert Kennedy,
and Martin Luther King, Jr.), and communist subversion, fueled a
widespread belief in the need for zealous police activity directed
against political militants. …