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Eavesdropping on the phone calls of U.S. citizens; demands by the FBI for records of library borrowings; establishment of military tribunals to try suspected terrorists, including U.S. citizens--many of the measures taken by the Bush administration since 9/11 have sparked heated protests. In Not a Suicide Pact, Judge Richard A. Posner offers a cogent and elegant response to these protests, arguing that personal liberty must be balanced with public safety in the face of grave national danger.
Critical of civil libertarians who balk at any curtailment of their rights, even in the face of an unprecedented terrorist threat in an era of proliferation of weapons of mass destruction, Posner takes a fresh look at the most important constitutional issues that have arisen since 9/11. These issues include the constitutional rights of terrorist suspects (whether American citizens or not) to habeas corpus and due process, and their rights against brutal interrogation (including torture) and searches based on less than probable cause. Posner argues that terrorist activity is sui generis--it is neither "war" nor "crime"--and it demands a tailored response, one that gives terror suspects fewer constitutional rights than persons suspected of ordinary criminal activity. Constitutional law must remain fluid, protean, and responsive to the pressure of contemporary events. Posner stresses the limits of law in regulating national security measures and underscores the paradoxical need to recognize a category of government conduct that is at once illegal and morally obligatory.
One of America's top legal thinkers, Posner does not pull punches. He offers readers a short, sharp book with a strong point of view that is certain to generate much debate.
OXFORD'S NEW INALIENABLE RIGHTS SERIES
This is inaugural volume in Oxford's new fourteen-book Inalienable Rights Series. Each book will be a short, analytically sharp exploration of a particular right--to bear arms, to religious freedom, to free speech--clarifying the issues swirling around these rights and challenging us to rethink our most cherished freedoms.
Not for the faint of heart...
| Customer Rating:  | | To couch this review and Posner's argument, I paste a quote from Posner himself found the in The New Republic. "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used--and will be used--to obtain the information. ... no one who doubts that this is the case should be in a position of responsibility." Who will argue with this? One person versus millions? Obviously everything needs to be considered rationally, weighing the issues, looking at expected costs and benefits. If on average we can stop more terrorist attacks with torture, it is probably worth it from a detached perspective. |
I expected better from Posner....
| Customer Rating:  | In another, perhaps better world, Judge Posner would have been a Republican nominee for the Supreme Court. His age reputedly barred him in this one.
Unfortunately, for this book, you could probably stop at the title, and that would give you the gist.
Judge Posner's thesis is that at a time of war, noone can be allowed to second judge the nation's security establishment. Moreover, he argues that judges are particularly unsuitable for the task. He offers examples from history to buttress his thesis.
Unfortunately, unless one starts out with the premise that his conclusion is intrinsically correct, his arguments read, at least to my eyes, as somewhat cyclical and self-serving.
After all, judges balance competing consideration in a vast array of other types of cases all the time. Why not in matters of national security? He also ignores key problems, at least in my reading:
1. Lincoln's actions WERE widely condemned, often fiercely resisted, and are considered by legal historians to be a blot on his legacy.
2. Korematsu, the Japanese internment case, was based on submissions to the Supreme Court that the Justice Department KNEW to be untrue. So the most famous instance of the Constitution not being a suicide pact was based on a lie, a lie that many DOJ official vigorously protested at the time.
As Judge Reinhardt said about Judge Posner, the problem is not in his writing. He is a fine writer, and his writing is enjoyable. The problem is with his thinking and conclusions. |
Interesting introduction to constitutional law
| Customer Rating: | As a layman I found Posner's book to be a very interesting way to learn about the issues with constitutional law not only in a time of crisis, but in general. He starts out with a discussion on how constitutional rights are created. It clarified many of the questions I had in my mind on how the constitution could be interpreted the way it is. It even made sense. He then explained how national security shapes those rights. He argues for a balance between security and rights.
The next four chapters discuss the rights against detention, the rights against brutal interrogation and searches and seizures, the rights of privacy, and finally the right of free speech. These chapters brought out the arguments based on security and also the arguments of civil libertarians. Posner tended to argue for a balance between those views that changes given the circumstances. In case of dire emergency, the president should be able to suspend some rights. I thought the discussion in the concluding chapter on Lincoln's suspension of habeas corpus was a good way to illustrate his point. Should the constitution be amended to allow this action, or should it continue to be illegal? He brings up the pros and cons of each and his conclusion makes sense to me.
Posner's writing style is very clear and I found that as a layman this complex issue was understandable. Do I agree with all of his conclusions? Probably not; but the general concept of balancing personal security and rights does ring as a principle worth considering. I recommend this book for anyone with an interest in constitutional law and the current war on terror. |
The Balance Between Liberty And Security
| Customer Rating: | Federal Appeals Court Judge Richard A. Posner is known for being both prolific and controversial. In addition to authoring one of the most important academic treatises in the field of law and economics, he is also known for writing on more controversial topics ranging from the 2000 Presidential election to sex. And it's when he writes on these topics, covering areas that are both controversial and likely to be the subject of high-profile Constitutional case law, that he's often at his most interesting, even when you don't agree with him.
In Not A Suicide Pact: The Constitution In A Time Of National Emergency, Posner examines the questions and conflicts that have arisen between national security and individual liberty in the wake of the War on Terror and asks the question of just how far Courts should go in either protecting liberty or granting leeway to the state to deal with a perceived emergency.
Posner's entire thesis with respect to the roles that liberty and safety should play in Constitutional jurisprudence can be summed up in the paragraph that opens the conclusion to the book:
"Constitutional rights are largely created by the Supreme Court, by loose interpretation of the constitutional text. Created as they are in response to the felt needs and conditions of the time, they can be and frequently are modified by the Court in response to changes in those needs and conditions. A constitutional right should be modified when changed circumstances indicate that the right no loner strikes a sensible balance between competing constitutional values, such as personal liberty and public safety. A national emergency, such as a war, creates a disequilibrium in the existing system of constitutional rights. Concerns for public safety now weigh more heavily than liberties in recognition that the relative weights of the competing interests have changed in favor of safety. That is the pragmatic response, and pragmatism is a dominant feature not only of American culture at large but also of the American judicial culture."
If you're someone like myself who views individual liberty and the protections guaranteed by the Bill of Rights as immutable, a paragraph like that is bound to make your blood boil. And, I will admit that there were several times when I found myself wanting to argue with Posner over one obscure point or another (which I imagine would be a fascinating intellectual experience in itself).
Posner's approach, however, is entirely understandable for two reasons. First, it is entirely consistent with his broader adherence to law and economics, which is all about balancing, and pragmatism, and finding efficient outcomes, as a legal philosophy. Second, he's a Federal Judge and, with rare exceptions, the approach that he suggests in this book is entirely consistent with the way that most Federal Judges seem to view questions of the proper line to draw between individual liberty and public safety.
That doesn't mean that Posner is correct, though.
First, there's his view of individual/constitutional rights as something that are strictly judge made, rather than something that exist independent of the whim of the judiciary. Because of what Posner contends to be the inherent vaguenesss of the Constitutional text, it is up to Judges to determine the boundaries of constitutional liberty. The problems with this approach are replete and exist throughout the 200+ years that the Supreme Court has existed. All too frequently, judges have interpreted portions of the Constitution too narrowly, or too broadly, or just ignored it entirely and ruled based on how that though the case should be decided. Leaving the definition of civil liberties strictly and exclusively in the hands of an unelected judiciary is, in the end, a recipe for disaster.
Given Posner's views on the malleability of constitutional rights, it isn't entirely surprising where he comes down on the debate over when and how much individual liberty should be sacrificed in the name of public safety at a time of supposed national emergency, such as that represented by the War on Terror. With very few, though very interesting exceptions, Posner would give more power to the state to fight the threat posed by terrorism -- notwithstanding the fact that, except for September 11th, there hasn't been evidence of a single foreign terrorist plot on American soil in over five years -- at the expense of individual liberty and privacy.
Another area which Posner brushes over is the fact that national emergencies have, in the past, served as the justification for increases in the size, scope, and power of government. Posner briefly addresses this issue by citing examples from the Post-WW2 and Cold War eras of government regulation that has since abated. In reality, of course, the end of each of these supposed emergencies still resulted in a Federal Government that exerted more control than it did at the time the "crisis" started.
Of course, much of that is explained by the fact that local incumbents in law enforcement find it in their interest to point out how bad things would be under a second term.
There are some points one which I must admit that Judge Posner is right. There is a distinct difference between law enforcement and intelligence gathering. And there seem to be far fewer Constitutional limitations on intelligence gathering, which logically must be considered part of the Article II power of the Executive Branch, than on law enforcement, which finds itself limited by the 4th, 5th, and 6th Amendments, just to name a few.
And maybe that makes sense.
The purpose of intelligence gathering is, or at least, should be, preventing attacks on the homeland, whether from terrorists or foreign nations, from happening. Law enforcement steps in only after an attack has occurred. In the case of terrorism, law enforcement is an admittedly ineffective tool.There's no point in filing criminal charges against the 19 men who hijacked planes on September 11th, but if we'd been able to break up that conspiracy on September 9th........well, that wouldn't have been a bad thing after all.
In the end, as Posner points out, and as reluctant as I may be willing to admit, it may well be true that there is a trade-off between liberty and security that we all will have to make a decision on in the near future.
On each side, there's an extreme that is entirely unpleasant. Too little government vigilance in the face of a real terrorist threat could lead to the deaths of millions. Too severe a restriction on individual liberty could lead to a free reign for destruction. |
A book of Habeaus Corpus
| Customer Rating: | | This is an intellectual approach towards whether or not we allow civilian rights to be infringed upon in times of crisis and what that allows, leading towards an almost totalitarian state by goverment. Agree or disagree, the arguments are presented well here. |
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