Hopefully Anonymous, my point is that optimal is functional. If we find that our "optimal" policy is not functional, we need to expand the scope of our cost-benefit analysis.
If enough people are seriously disgusted by the possibly of compulsory trials (and I think they would be), the policy is unlikely to pass a cost-benefit test. When people balk that a particular policy will take their freedom, they are essentially saying "this policy would cause me harm, since I value my freedom." We need to look outside the most obvious costs and...
I am not convinced that a utilitarian legal system is much different than the systems of modern Western societies. Most laws in such societies are passed on grounds of ethics, efficiency, or a combination of both. Many people assume that laws passed on ethical grounds are inefficient by utilitarian standards, but I don't think that's necessarily true.
Consider murder laws. These are typically justified with a moral argument: life is sacred. But when a person is killed by another, the cost is not just some abstract violation of moral principle--since it ...
Chapter 11 of the 9/11 commission's report, available here, shows the commission was very wary of hindsight bias. The failure to prevent the attacks is said to represent a "failure of imagination," meaning the intelligence community used the wrong model in evaluating terrorist threats.