Monday, March 12, 2007


How much are we willing to sacrifice in the war against terror? Any criticism of the erosion of our civil rights is met with the argument that it is necessary and it is working. We haven't had an attack since 9/11! The questionable wire taps, secret foreign CIA interrogation prisons, possible torture, prolonged detentions without counsel or hearings, rejection of the Geneva Convention, the gathering of information by the FBI about American citizens and companies (revealed just today), the elimination of habeas corpus for certain categories of persons, etc. are all justified in the name of fighting terror and I believe, although I have nothing to substantiate it, that most of the country approves.

But since when have we tested constitutional violations by asking whether or not they produce favorable results? Do we condone beatings of suspects because they produce confessions? Do we condone unlawful searches because they disclose the whereabouts of illegal weapons or incriminating evidence? Do we condone the concealment of exculpatory evidence because it might aid the guilty defendant? Would we condone any of these practices on the grounds that they were necessary and were working! Or is the fear of terrorism so great that we are willing to sacrifice many of our cherished ideals and rights?

When Prof. Markel invited me to post to his blog and told me his readership was primarily law professors, I told him that my blog (X-Judge) was not "academic", and frankly, with but one exception, I hope never to cite a case again. But I leapt at this opportunity because I would be interested in knowing how law professors feel about these issues; what they are teaching in their classrooms, and what they are they learning from their students. I fear that we are in a constitutional crisis and what we give away now we may never get back.

This post was the result of an invitation to PrawfsBlawg.

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