Unclear and future danger
Is this censorship or what?
U.S. military spokesman Rear Admiral Greg Smith said that in the past year, 39 al Qaeda members in Iraq responsible for producing and disseminating videos and other material to thousands of Internet Web sites had been captured or killed.
It's not censorship, but war. Information war.
"We think the vast majority of this media network has been degraded at this point," he said, adding that the arrests had led to fewer Internet postings of al Qaeda beheadings, kidnappings and other attacks in Iraq. ...
In February, U.S. intelligence monitoring of those Web sites showed 34 new postings of videos and audio material from Iraqi networks, down from 144 postings in June 2007, Smith said. "Those responsible for the more finished product, the stuff that really grabs the attention in mosques and elsewhere, we have those people on the run," he said.
But why is going after al-Qaeda's webmasters and content providers war and not censorship? What if a man like Johnny Walker Lindh or Adam Gadahn were discovered to be providing "the more finished product, the stuff that really grabs the attention in mosques"? Would action against them be justified or would they be protected?
Eugene Volokh tries to parse the meaning of the phrase "the Constitution is not a suicide pact" and produces a number of test scenarios, ranging from the strongest to weakest and examines the tradeoff between the freedom of expression and national danger.
Eugene Volokh presents 3 scenarios and asks which should be suppressed under the idea that the public is not in a "death pact".
- activity that would mean the nation's death as a free and independent country;
- activity that hinders but doesn't really significantly threaten the nation's death as a free and independent country;
- activity that would cause some loss in warmaking effectiveness, or some threat of death to soldiers or others.
He thinks the line is crossed based upon some trigger threshold which is hard to define. "The real issue is when certain behavior becomes so dangerous that this danger justifies a special constitutional rule that differs from the one used for normal dangers." And there is no "bright line" which marks the boundary.
The Bill of Rights is an accommodation of the demands of security and liberty, which is to say of security against criminals or foreign attackers and security against one’s own government. The rules that it sets forth, and that the Supreme Court has developed under it, ought to cover the overwhelming majority of risks, even serious ones and even ones that arise in wartime.
But it's not clear that those rules, developed against the backdrop of ordinary dangers, can dispose of dangers that are orders of magnitude greater. This is why the usual Fourth Amendment rules related to suspicionless home searches might be stretched in cases involving the threat of nuclear terrorism; why we continue to have a debate about the propriety of torture in the ticking nuclear time bomb scenario; and why, in a somewhat different context, the Constitution provides for the suspension of habeas corpus in cases of rebellion or invasion.
Likewise, avoiding extraordinary harms-especially harms caused by information that helps others construct nuclear and biological weapons, weapons that can kill tens of thousands at once-may justify restrictions on speech that would facilitate the harms. The government might, for instance, prohibit publication of certain highly dangerous information, even when the information is generated by private entities that have never signed nondisclosure agreements with the government. In effect, research in these fields could then only be conducted by government employees or contractors, or at least people who are operating with government permission: They might be able to share their classified work product with others who have similar security clearances, but they couldn't engage in traditional open scientific discussion.
The restrictions would indeed interfere with legitimate scientific research, and with debates about public policy that require an understanding of such scientific details. For instance, if people weren't free to explain exactly how the terrorists might operate, then it would be harder to debate, for instance, whether the distribution of certain laboratory devices or precursor chemicals should be legal or not, or whether our civil defense strategies are adequate to deal with the possible threats. The restrictions may even prove counterproductive, especially if they are badly designed or if classified research into countermeasures is inevitably much less effective than open research: They might interfere with the good guys' ability to produce effective defenses-for instance, effective defenses against biological weapons, or effective detection mechanisms for smuggled nuclear bombs-more than they interfere with the bad guys' ability to create and deploy weapons.
My takeaway from Volokhs discussion as a non-lawyer is that there exists an inverse relationship between the existence of "extraordinary harms" and liberty. The more dangerous an environment the most restrictive it becomes. The more permissive an environment the greater are the liberties than can be enjoyed.
This inverse relationship is the reason why appeasement -- i.e. kicking the can down the road -- can be inimical the liberty. When a society's enemies are allowed to multiply the danger of "extraordinary harms" to the public under the color of freedom, liberty itself becomes the eventual victim. Giving an enemy leave to prepare dangers is a down payment on tyranny; the tradeoff between liberty in the present is sometimes restrictions in the future.
It is this temporal aspect -- the ability to shift the price of freedom across the years -- which becomes especially important in a Long War. In conflicts of short duration (like World War 2) populations are often willing to submit to severe restrictions on their liberties in the belief that the ordeal will soon be over. But when confrontations last over decades, like the Cold War or the current War on Terror, the court system needs rules which recognize the time value of danger on liberty aspect of the problem.
A judge must be able to apply something like a discount rate to a future danger not only with respect to the physical threats but also to the future costs to liberty. That makes a judge's job more complicated than it already is and opens the way for unjustified restrictions on present freedoms in the name of future dangers. But the evil cannot be wholly avoided, and it's possible that society is already subconsciously doing this (with wiretaps and databases) without a clear doctrine. In fact, the entire rationale for politically correct hate speech is based on restricting "hateful comments" now in order to protect society from "rage" down the track. But here the temporal question should be examined explictly. It may be that restricting hateful comments now actually increases the both the likelihood of hateful comments and rage in the future.
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