Richard Epstein on the Tradeoffs Between Liberty and Security
Today's excerpt from Confronting Terror: 9/11 and the Future of American National Security comes from a contributor that longtime Ricochet readers know well: NYU law professor and my partner on Ricochet's Law Talk podcast, Richard Epstein. The excerpt comes from his essay, "The Imperfect Reconciliation of Liberty and Security."
At this point, we have to face the grim truth that the decision on when and how to intervene—nonintervention is the kiss of death—will be fraught with two types of errors. These errors have previously resisted any easy solution—even in separate contexts that carry none of national security’s heavy freight. The key question deals with the mix between remedies that are imposed before any harm occurs and those that are applied only after it has taken place. In all cases, there are twin objectives: to punish the current offenders and to deter future offenses. There is simply no way in which to attack this task without making serious errors in execution that run in both directions. The more difficult the situation, the higher the error rate. This is true even for the optimal solution.
At this point, the potential sources of errors are legion. The first point is technical. Someone has to give weight to the various errors, and to the probabilities of their occurrence under different regimes. Next, there are unintended consequences. Getting tougher on terrorists does not necessarily reduce the levels of terrorism. It could easily lead to actions that offend large groups of individuals in ways that could radicalize them. Yet the effort to placate opposition can itself be the path to doom if it leads our enemies to think that they can outlast us.
It is a mistake to tarry too long at a high level of abstraction. Without getting down to cases it is possible that we will generate false disagreements that will disappear when the context becomes plainer. It is also likely at a high level of abstraction for people to take dogmatic positions they would not otherwise take if they proceeded either case by case or area by area. Therefore, I shall not dwell on the relative importance of either liberty or security or pretend that there is any global way in which to rank one ahead of the other. Security of the person necessarily requires that a society limit the way in which all people can use force and fraud against their fellow citizens. The ordinary laws of self-defense and defense of property are riddled with trade-offs that will not disappear as the contexts become more complicated. At root, the difficulties of international security reflect and magnify the difficulties in the common law of self-defense in all its rich variations.
In order to show how these trade-offs should be organized, I shall comment on two types of situations. The first deals with the efforts to ferret out terrorist activities before they can be undertaken. I limit myself to a discussion of the interception of communications and racial and ethnic profiling. The second deals with the apprehension and treatment of individuals who have engaged in terrorist activities, including conspiracies to commit offenses that involve harm to persons, the destruction of property, or the theft of government secrets ...
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Dec '10
Re: Richard Epstein on the Tradeoffs Between Liberty and Security
Gosh, I will have to go through this very slowly. For realism, I tried to read this at the rapid-fire pace of his speaking. Now I will have to go back through this at a stroll, but not while Boyz are baying for dinner.