If we keep appointing juges like Coughenour, the terrorists will will

Are judges supposed to use sentencing as an opportunity to make political statements?

U.S. District Judge John C. Coughenour[, Seattle,] sentenced a defendant to prison for plotting to bomb the Los Angeles airport. In the course of the sentencing, the judge criticized the Bush administration's post-Sept. 11 policies, such as the use of military tribunals and the detention of enemy combatants. He said that "the message to the world from today's sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart." Some people, the judge said, believe that the terrorist threat "renders our Constitution obsolete. . . . If that view is allowed to prevail, the terrorists will have won."

What pronouncing sentencing on one man who was arrrested before 9/11 has to do with post-9/11 policy is pretty obscure, particularly when judges are not supposed to be involved in setting policy.

I'd like to see the source for his remark about "some people" and the Constitution being obsolete. I've never heard it anywhere before. The message Judge Couchenour's sermon sends is that Al Qaeda should keep trying.

The authors of the piece, Eric A. Posner and Adrian Vermeule, note:

[W[orse than the judge's logic is the underlying sentiment that yesterday's law enforcement procedures are adequate for today's security threats -- and that any deviation from them is a betrayal of the Constitution.

They examine several "judicial cliches" that show the confused thinking of important judges:

(1) the terrorists will "win" if legal rules and policies are changed in ways that restrict the package of civil liberties in place before the terrorist threat emerged.

(2) [A] nation that permits incremental reductions in its civil liberties in response to threats to its citizens is not worth defending.

The former assumes that the terrorists' aim is to cause us to abandon civil liberties, while the latter suggests that the liberties we enjoy are more important than life itself, and that the most important of these is privacy.

The piece does a masterful job of demonstrating the sophistry of these arguments:

The spurious assumption behind both cliches is that whatever package of civil liberties happens to exist at the time a terrorist threat arises must be maintained at all costs; adjustments that reduce liberty are bad even if they produce greater gains in security, potentially saving people's lives. This is a virulent form of the fallacy of the status quo -- that whatever exists must be good.. . .

The two cliches about terrorism are familiar from debates among commentators and politicians. What is new and surprising is their citation by judges as self-evident truths.

What is self-evident to most people is that if one is dead, his rights of privacy, free speech, religion and property are no longer relevant. The number one obligation of government is to protect the lives of its people, which is why you never heard people in London complaining about their rights being violated when they were told to head for the bomb shelters during WWII, and why people are willing to submit to delays and searches at airports. The fact that such searching is being so scrupulously kept free of racial profiling, is starting to get a lot of criticism as wasting time searching little old ladies and other passengers, while scrupulously avoiding focus on young Middle Eastern or South Asian men.