Posner added that such a view, while true, is contrary to the mindset of most Americans. “Fatalism is very alien to the American attitude. The notion that ‘we’ve been surprised before; we’ll be surprised again; we can’t prevent all surprise attacks’ has a fatalistic ring to it that Americans don’t like,” he said.
Although Posner is sharply critical of the substance of the 9/11 report, he is also very concerned about how Congress considered the report. Put simply, Posner believes Congress acted too hastily.
He noted that the 9/11 commission issued its report on July 22, 2004, and Congress passed the Intelligence Reform and Terrorism Prevention Act several months later, on Dec. 6.
Posner said it was absu
rd to try to reorganize a major part of the national security apparatus just weeks before the 2004 presidential election, which was expected to hinge on national security issues.
“What’s attractive about the Intelligence Reform Act for a member of Congress is that it allows Congress to say they’ve done their job. So if anything bad happens, it must be the people who execute it,” he said.
Posner laments that the press corps was not more careful and critical in scrutinizing the report. He said the press has an aversion to complex and abstract issues and tends to focus on easy human interest angles, such as the views of the 9/11 families or conflicts between government agencies and political leaders.
“The whole passage of the Intelligence Reform Act was played as a fight: the Defense Department trying to hold on to its prerogatives; Bush, lukewarm about the law, trying to alter provisions in it. People are not interested in the structure of the intelligence system. It’s too complicated, and they haven’t been educated in it,” he said. “The public has a limited capacity to focus on national security affairs. The war on Iraq sucks up most of the energy of the reporters and the public.”
Posner is also disappointed there were not more public intellectuals who weighed in on the debate about intelligence reform. “There are a number of knowledgeable people about intelligence, but there was this strange silence. Many people who have a background in intelligence are not accustomed to discussing intelligence in public.”
Posner said that although he had no special expertise in intelligence, he had written judicial opinions dealing with intelligence matters in the 1980s and has become very interested in the issue of catastrophic risk.
“After I wrote the New York Times review, I got quite interested in the subject of intelligence. I was very much an outsider. But there is a lot of value in an outside perspective. The people who are very knowledgeable about intelligence tend to be somewhat reticent.”
A native of New York City, Posner graduated from Yale in 1959 with honors and then graduated first in his class at Harvard Law School in 1962. He worked for several years in Washington during the Kennedy and Johnson administrations—as a law clerk to Justice William Brennan Jr., an assistant to Philip Elman, head of the Federal Trade Commission, and to the Solicitor General of the U.S. Thurgood Marshall, as well as a general counsel for President Lyndon Johnson’s Task Force on Communications Policy.
Posner began teaching law at Stanford University in 1968 and a year later became a law professor at the University of Chicago, where he remained a full-time teacher until he was appointed to the Court of Appeals.
Posner said he gives priority to his judicial work, using his evenings, weekends and summer breaks to do research and writing in other areas.
He remains intrigued by the challenges caused by terrorism and worries about the new threats posed by bioterrorism, nuclear terrorism and cyber-terrorism.
“I think the operations in Afghanistan have really hurt al Qaeda and it has never really reconstituted itself and is on the ropes. We don’t know if groups quite different from al Qaeda are planning something. There are a lot of dangers.”
John Shaw is a contributing writer for The Washington Diplomat.
