Richardson Lynn, the Dean of the John Marshall Law School, takes Homeland Security Secretary Michael Chertoff to task for saying that ""We've got to have a legal system that lets us . . . prevent things from happening rather than . . . reacting after the fact." Lynn responds:

No, actually, we don't.

There are countries with such a legal system, and we would not want to live in any of them: Syria, Iran, North Korea -- name your favorite axis of evil.

The only kind of legal system that could "prevent things from happening" requires a highly intrusive program of government surveillance of all communications (e-mail, letters and phone calls) and financial transactions of private citizens, incentives for people to spy on neighbors or family members, and lifting all restraints on interrogation and investigation of suspects.

If you don't have all three, it won't work. If Chertoff is willing to preserve some features of an open society in Patriot Acts II-IV, the new legal system will not prevent all things from happening. [snip]

The horror of losing friends and loved ones in the inexplicable violence of terrorism is surely one of our deepest fears. But someone has to say: There are worse things.

The politician who says that restrictions on liberty are justified "if even one life is saved" cannot be taken seriously. We constantly make public policy decisions by carefully balancing risk in favor of the greater good. On balance, the slight risk of massive loss through a successful attack is outweighed by the freedoms that are our natural right. It is entirely rational to accept some level of terrorism, crime or disorder rather than live in a police state that claims to guarantee perfect safety.

Lynn's basic argument about respecting civil liberties is fine, so far as it goes, but his beef against Chertoff is vastly overblown and it's is tinged with the type of purist civil libertarian claptrap that infuriates me. America is not now, nor will it ever be a "police state." Nor have our personal freedoms been diminished in any significant way since 9/11.

What we have tried to do, in the wake of watching 3,000 of our innocent fellow citizens incinerated before our very eyes five years ago, is to try and find ways of protecting ourselves against foreign and domestic terrorist threats. It seems to me we've done so with a great deal of respect and attention to civil liberties - even though the process has been awkward and clumsy at times. Our first reaction was a swift dose of common-sense: tear down the wall between intelligence agencies and let them communicate, and give them the same tools to track terrorists that they currently have to track mobsters and drug dealers.

But, yes, we also eventually ended up with a dorky, color-coded alert system that means virtually nothing to the average American and thousands more government employees who stand around at airports offering little additional protection. And, out of a respect for civil libertires - or more accurately the perception of civil liberties in America - we've been unable to bring ourselves to profile the rather well-defined group of people who constitute the greatest potential threat (statistically speaking) to our free society.

I think John mentioned this a while back, but it's worth repeating again: Civil libertarians who've been berating the President and bemoaning the relatively mild measures that have been taken to protect the country over the last five years are going to find themselves in a very tough spot if the country suffers another devastating attack.

Let's hope Dean Lynn remembers to teach his students that while it's absolutely right to cherish and defend civil liberties, the Constitution is not a suicide pact.

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