Richard A. Posner may be on to something regarding an American need for an MI5 equivalent, in light of the recent foiled attacks. In his essay, he concludes:
We cannot afford to assume that we are safe. Perhaps we will now abandon that comfortable assumption.
I’m fine with that, and don’t believe I’ve argued for anything to the contrary in my words here. But this is not a strong foundation for convincing me of his specific plan:
But to the extent that our laws do handicap us in fighting terrorism, it is one more sign that we do not take the threat of terrorism seriously enough to be willing to reexamine a commitment to a rather extravagant conception of civil liberties that was formed in a different and safer era.
I read that portion of Judge Posner’s essay as referring specifically to the period in which suspects can be held without a hearing. Let’s debate that, and take appropriate action if 48 hours doesn’t make sense. But the solution does not involve removing an extravagant conception of civil liberties. The government already believes any constraints are extravagant. They do not need fewer constraints. Seek a solution that protects oversight of civil liberties protection, not a solution that tramples our ideals with a guilty until the government decides otherwise conception of national security.