August 30, 2004

IF JUDGE BORK ISN'T LEARNED HAND JUDGE POSNER IS (via Robert Schwartz):

The 9/11 Report: A Dissent: a review of THE 9/11 COMMISSION REPORT
Final Report of the National Commission on Terrorist Attacks Upon the United States (RICHARD A. POSNER, 8/29/04, NY Times Book Review)

Combining an investigation of the attacks with proposals for preventing future attacks is the same mistake as combining intelligence with policy. The way a problem is described is bound to influence the choice of how to solve it. The commission's contention that our intelligence structure is unsound predisposed it to blame the structure for the failure to prevent the 9/11 attacks, whether it did or not. And pressure for unanimity encourages just the kind of herd thinking now being blamed for that other recent intelligence failure -- the belief that Saddam Hussein possessed weapons of mass destruction.

At least the commission was consistent. It believes in centralizing intelligence, and people who prefer centralized, pyramidal governance structures to diversity and competition deprecate dissent. But insistence on unanimity, like central planning, deprives decision makers of a full range of alternatives. For all one knows, the price of unanimity was adopting recommendations that were the second choice of many of the commission's members or were consequences of horse trading. The premium placed on unanimity undermines the commission's conclusion that everybody in sight was to blame for the failure to prevent the 9/11 attacks. Given its political composition (and it is evident from the questioning of witnesses by the members that they had not forgotten which political party they belong to), the commission could not have achieved unanimity without apportioning equal blame to the Clinton and Bush administrations, whatever the members actually believe.

The tale of how we were surprised by the 9/11 attacks is a product of hindsight; it could not be otherwise. And with the aid of hindsight it is easy to identify missed opportunities (though fewer than had been suspected) to have prevented the attacks, and tempting to leap from that observation to the conclusion that the failure to prevent them was the result not of bad luck, the enemy's skill and ingenuity or the difficulty of defending against suicide attacks or protecting an almost infinite array of potential targets, but of systemic failures in the nation's intelligence and security apparatus that can be corrected by changing the apparatus.

That is the leap the commission makes, and it is not sustained by the report's narrative. The narrative points to something different, banal and deeply disturbing: that it is almost impossible to take effective action to prevent something that hasn't occurred previously. Once the 9/11 attacks did occur, measures were taken that have reduced the likelihood of a recurrence. But before the attacks, it was psychologically and politically impossible to take those measures. The government knew that Al Qaeda had attacked United States facilities and would do so again. But the idea that it would do so by infiltrating operatives into this country to learn to fly commercial aircraft and then crash such aircraft into buildings was so grotesque that anyone who had proposed that we take costly measures to prevent such an event would have been considered a candidate for commitment. No terrorist had hijacked an American commercial aircraft anywhere in the world since 1986. Just months before the 9/11 attacks the director of the Defense Department's Defense Threat Reduction Agency wrote: ''We have, in fact, solved a terrorist problem in the last 25 years. We have solved it so successfully that we have forgotten about it; and that is a treat. The problem was aircraft hijacking and bombing. We solved the problem. . . . The system is not perfect, but it is good enough. . . . We have pretty much nailed this thing.'' In such a climate of thought, efforts to beef up airline security not only would have seemed gratuitous but would have been greatly resented because of the cost and the increased airport congestion.

The problem isn't just that people find it extraordinarily difficult to take novel risks seriously; it is also that there is no way the government can survey the entire range of possible disasters and act to prevent each and every one of them. As the commission observes, ''Historically, decisive security action took place only after a disaster had occurred or a specific plot had been discovered.'' It has always been thus, and probably always will be.


It's too bad he's unconfirmable because Judge Posner possesses one of the great legal minds of our time.

Posted by Orrin Judd at August 30, 2004 4:55 PM
Comments

Mr. Judd;

I'm not so sure that we will never succeed at preventative actions for disasters. The problem is such actions will either be unknown or unheralded because the disaster didn't take place. Did we prevent a Soviet invasion of Western Europe in 1950? Who knows? But it'll certainly never be the target of a Congressional investigation.

Posted by: Annoying Old Guy at August 30, 2004 5:43 PM

It's too bad he's unconfirmable because Judge Posner possesses one of the great legal minds of our time. He is definitely one of the great legal minds of our time; I'm not sure he's unconfirmable, especially if the Republicans pick up a couple of senate seats; but he would make me very nervous on the Court.

Posted by: David Cohen at August 30, 2004 6:09 PM

David:

I'd oppose his appointment unless they had already added two or three justices.

Posted by: oj at August 30, 2004 6:32 PM

Unless the structure of SCOTUS is changed dramatically, Posner will not be nominated because he is in his upper 60's. If Bush gets to make several appointments in his next term, none of them will be over 55.

Posted by: Robert Schwartz at August 30, 2004 8:36 PM
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