Not a Suicide Pact: The Constitution in a Time of National Emergency - ISBN:0195304276

Not a Suicide Pact: The Constitution in a Time of National Emergency

Date: 15 April 2011, 13:19

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In this brief and provocative book, Judge Richard Posner, perhaps the most prolific legal writer alive and one of the most interesting, makes his case for the use by the U.S. government of exceptional measures against the ongoing threat of Islamic terrorism. We are at war, Posner says, and under wartime conditions, some constitutional rights can be temporarily suspended in order to defend the nation. As precedent, Posner harks back to some of President Lincoln's Civil War-era actions, which couldn't be justified under today's understanding of the Constitution.
Posner is not a blanket supporter of the Bush administration's legal views -- he argues that Guantanamo detainees should have specific, limited rights -- but in general, he comes down on the side of national security as opposed to the traditional notions of civil liberties.
Posner employs his usual mode of thinking, often to good effect. The Posnerian approach invariably involves balancing tests: How much liberty will be lost by authorizing this NSA surveillance or this form of interrogation, and, on the other hand, how likely is it that the measure will increase our security by helping us apprehend a terrorist or prevent a bombing? Posner recognizes that this is not economic analysis where variables can be inserted and a numerical answer will emerge. There are too many imponderables.
Posner is not afraid of imponderables, however. "We make pragmatic utility-maximizing decisions all the time without being able to quantify the costs and benefits of the alternatives among which we are choosing," he writes. He is willing to let government officials sort out the pros and cons -- again, only in the context of the immediate, grave, and unprecedented threat to the nation posed by al Qaeda -- in the expectation that the officials will make the right decisions, restrained primarily by political considerations such as the separation of powers and the need to run for re-election. Posner is an extreme pragmatist in this context. He does not advocate the legalization of torture, even against terrorist suspects; he does advocate "civil disobedience" in which public officials will use torture on very rare occasions that constitute "necessary violations of the law against torture."
Civil libertarians will not be happy with this book, as Posner recognizes. He does not dismiss their contentions out of hand, nor does he reject the limitations that the U.S. Supreme Court has placed on the Bush administration's claims regarding executive power. His approach is again a balancing test: Clearly, curtailing civil liberties imposes costs, but the question is whether the costs exceed the benefits. Civil libertarians, Posner says, tend to exaggerate the costs of anti-terrorism measures such as the Patriot Act and to ignore the benefits to the nation such as the thwarting of terrorist plots.
This brief, thoughtful, and well-written book should kick off an important national debate.

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