I have no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture. The real debate is whether such torture should take place outside of our legal system or within it. The answer to this seems clear: If we are to have torture, it should be authorized by the law.
I have made a career out of arguing that we shouldn't be criminalizing political differences. I've made a career out of arguing that the grand jury is an abusive institution. I have made a career out of arguing that we shouldn't stretch and expand the criminal law. I'm not going to change it because you think these are abnormal times. When Thomas Jefferson told the Justice Department that they had to prosecute Aaron Burr, and that he was going to have the chief justice impeached unless he found Aaron Burr guilty, those were special times too.
In the real world in which we live, you always have to choose between evils. And in choosing between evils, you have to have moral criteria for how to make those choices.
I think mistakes are the essence of science and law. It's impossible to conceive of either scientific progress or legal progress without understanding the important role of being wrong and of mistakes.
Individuals have the right to pick and choose which expressions to condemn, which to praise and which to say nothing about. Governments, however, must remain neutral as to the content of expression. And governments must protect the rights of all to express even the most despicable of views.
When the Jews were being persecuted by the Nazis in 1944 we passed the War Refugee Act, which focused on rescuing Jews, a religious group. But if the religious group is the subject of the persecution based on their religion, it's perfectly OK for a First Amendment-bound society to emphasize their rescue, just as it is perfectly OK to emphasize the fact that many, if not all of the perpetrators of Islamic terrorism, come from countries with a history of supporting terrorism.
I don't think the law exists to arrive at the truth. If it did, we wouldn't have exclusionary rules, we wouldn't have presumptions of innocence, we wouldn't have proof beyond reasonable doubt. There's an enormous difference between the role of truth in law and the role of truth in science. In law, truth is one among many goals.
President Obama has earned my vote on the basis of his excellent judicial appointments, his consensus-building foreign policy and the improvements he has brought about in the disastrous economy he inherited.
When I was 14 or 15, a camp counselor told me I was smart. I had never been very good in school, but he told me once that I was smart but my mind operated a little differently.
In the Pentagon Papers case, the government asserted in the Supreme Court that the publication of the material was a threat to national security. It turned out it was not a threat to U.S. security. But even if it had been, that doesn't mean that it couldn't be published.
Law is an imperfect profession in which success can rarely be achieved without some sacrifice of principle. Thus all practicing lawyers -- and most others in the profession -- will necessarily be imperfect, especially in the eyes of young idealists. There is no perfect justice, just as there is no absolute in ethics. But there is perfect injustice, and we know it when we see it.