U.S. Court of Appeals Judge Richard A. Posner Respected Federal Judge Plunges Into Controversial Debate Over 9/11 by John Shaw In the current contentious U.S. political climate, many federal judges go to great lengths to avoid controversies. They are careful not to leave a lengthy paper trail. Not Richard A. Posner, a judge on the U.S. Seventh Circuit Court of Appeals and a senior lecturer at the University of Chicago. Posner has written prolifically and provocatively on subjects including the constitutional issues surrounding the Clinton impeachment trial, the legal challenges raised by the 2000 presidential election, and the report by the much-celebrated 9/11 commission. In an interview with The Washington Diplomat, Posner said federal judges should be prudent and avoid commenting on cases in which they are involved. They should, however, be willing to participate in national debates on important matters. “There are people who think that judges shouldn’t comment on public affairs at all because it makes them seem partisan,” Posner said. “But there is something judges can bring to issues. Judges are accustomed to weighing evidence and considering opposed views and trying to figure out a reasonable response. The judicial experience can be valuable in addressing important issues.” The U.S. judiciary has been under intense scrutiny in the past few years. Most recently, interest in the judicial system has soared with the resignation of Supreme Court Justice Sandra Day O’Connor and the possible partisan fight over her successor. Posner, 66, was appointed to the Seventh Circuit Court of Appeals in 1981 by President Ronald Reagan. There are 14 judges on the Seventh Circuit Court, which has jurisdiction over the district courts in Illinois, Indiana and Wisconsin. Posner was chief judge of the court from 1993 to 2000. He continues to sit on the bench while teaching part time at the University of Chicago and writing extensively on a wide range of issues. He has written 30 books and more than 300 articles and book reviews. Widely respected for his keen intellect, broad experience and willingness to tackle controversial issues, Posner was asked last summer by the New York Times Book Review to assess the report that was issued by the 9/11 commission. His essay, “The 9/11 Report: A Dissent,” was published on Aug. 29, 2004, and generated considerable interest. Posner was one of the first analysts to challenge the panel’s findings and suggest that its recommendations were ill conceived and even potentially dangerous. That article has been expanded into a book, “Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11,” that was published this year by the Hoover Institution Press. It’s a searing, even devastating, indictment of the 9/11 panel’s work. The commission, Posner argues, was diligent and well intentioned, but released a final report that was riddled with errors of logic, showed little command of history, and ignored various academic literatures that would have led it to far different conclusions. “The 9/11 commission made a lot of bad recommendations and Congress adopted most of them,” he said. Posner credits the panel with producing a narrative of the events surrounding 9/11 that makes for gripping, even riveting, reading. But he said the panel’s composition of an equal number of Democrats and Republicans, while designed to ensure balance, caused hedging and a politically negotiated allocation of blame. It would have been better, he said, if the panel had been composed of nonpartisan experts rather than political figures who seemed determined to spread responsibility for 9/11 equally between the Bush and Clinton administrations. Posner said the report gives no indication that the commission consulted scholarly literatures dealing with organizational theory (the organization of intelligence in particular), foreign experiences in the intelligence field, the history and anatomy of surprise attacks, the history of intelligence failures, or the history of government agency reorganizations. “There have been surprise attacks since the Trojan horse. We and other nations have been victims of surprise attacks before. We will be again,” he said. Posner is also sharply critical of the panel for focusing its recommendations on structural reforms of the U.S. intelligence system. He said a careful review of available evidence does not show that the organization of the U.S. intelligence system is flawed, and he jabs the 9/11 commission for offering a structural solution to what appears from its own narrative to be a managerial problem. “The failure to anticipate the 9/11 attacks does not seem attributable to the way in which the U.S. intelligence system is organized. A reorganization is a questionable response to a problem that is not a problem of organization,” he said. “The simplest response is a reorganization—it’s dramatic, visible, cheap, and can be done quickly. But it doesn’t actually change anything.” Posner said the panel’s chief organizational recommendation, creating a national director of intelligence, could actually hamper intelligence gathering while also breeding complacency by creating a nightmare of overlapping authority and years of implementation problems. The U.S. intelligence community, Posner argues, should be better coordinated, but not more centralized. The judge said he fears that the new organizational structure created by last year’s intelligence overhaul will impede the flow of intelligence and reduce the diversity of methods and agency cultures. “If the public believes that Congress has fixed the intelligence system, investment in alternative methods of protecting the nation will lose support,” he added. Posner said it would be better to bolster the nation’s border patrol and improve policing, deterrence, diplomacy and rapid reaction capabilities. The United States could also harden targets such as borders and ports. “These alternatives may be slighted if we think that by reorganizing the intelligence system we have eliminated the danger of another surprise attack.” If structural reforms were considered, Posner said, they should have focused on removing domestic intelligence functions from the FBI and dividing the jobs of the CIA director and the head of the U.S. intelligence community. Posner’s central point is one that he acknowledges is very unsettling for many Americans: that not all surprise attacks are preventable. “The report’s narrative demonstrates the psychological, political and operational difficulty of taking effective action to prevent a type of attack that hasn’t occurred previously and is but one among a large number of possible attacks,” he explained. “There is no way in which the government can survey the entire range of possible disasters and take costly steps to prevent each and every one of them.” Next Page