Monday, August 30, 2004

Dissecting the 9-11 Commission Report

There are a notable few judges in American history who have had, or will have, tremendous effect upon the shape of the law who were not (or will not be) Supreme Court justices. The list includes past judges Roger Traynor and Learned Hand and current judges Guido Calabresi and Richard Posner.

Posner partially revolutionized tort theory with his examination of the relationship between law and economics. He is perhaps the most prolific theorist on the bench, he writes numerous opinions as part of his full-time job as a judge on the Seventh Circuit Court of Appeals, and he has authored books, articles and law review essays galore.

In this week's New York Times Book Review, Judge Posner turned his perspicacious eye on the Report of the 9-11 Commission . . . and eviscerated it. He states his most important conclusions early (all emphases in excerpts added by TKM):

[T]he commission's analysis and recommendations are unimpressive. The delay in the commission's getting up to speed was not its fault but that of the administration, which dragged its heels in turning over documents; yet with completion of its investigation deferred to the presidential election campaign season, the commission should have waited until after the election to release its report. That would have given it time to hone its analysis and advice.

. . . The participation of the relatives of the terrorists' victims (described in the report as the commission's ''partners'') lends an unserious note to the project . . . One can feel for the families' loss, but being a victim's relative doesn't qualify a person to advise on how the disaster might have been prevented.

Much more troublesome are the inclusion in the report of recommendations (rather than just investigative findings) and the commissioners' misplaced, though successful, quest for unanimity. Combining an investigation of the attacks with proposals for preventing future attacks is the same mistake as combining intelligence with policy. . .

I've been critical of the 9-11 Commission, and I've also decried the politicization of the 9-11 Commission Report by claiming that its recommendations should be examined critically before they're implemented.

Posner also criticizes the substance of the Commission's report, as well as its process:

At least the commission was consistent. It believes in centralizing intelligence, and people who prefer centralized, pyramidal governance structures to diversity and competition deprecate dissent. But insistence on unanimity, like central planning, deprives decision makers of a full range of alternatives. For all one knows, the price of unanimity was adopting recommendations that were the second choice of many of the commission's members or were consequences of horse trading. The premium placed on unanimity undermines the commission's conclusion that everybody in sight was to blame for the failure to prevent the 9/11 attacks. Given its political composition (and it is evident from the questioning of witnesses by the members that they had not forgotten which political party they belong to), the commission could not have achieved unanimity without apportioning equal blame to the Clinton and Bush administrations, whatever the members actually believe.

and he notes a lack of imagination in the Report itself:

Apart from a few sentences on the possibility of nuclear terrorism, and of threats to other modes of transportation besides airplanes, the broader range of potential threats, notably those of bioterrorism and cyberterrorism, is ignored.

Posner's real criticism is for the FBI as he notes its "dismal" counterterrorism record and its failure to respond even when Director Louis Freeh called for more attention to terrorist threats.

Overall, an interesting and intelligent review. That's to be expected from Posner.

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