Federal Judge Posner on the War on Terror and Constitutional Law

We recently had an opportunity to read Judge Richard A. Posner's 2006 book Not a Suicide Pact: The Constitution in a Time of National Emergency. The title refers to Supreme Court Justice Robert Jackson's famous 1949 statement in his dissenting opinion in Terminiello v. City of Chicago, the gist of which is that the unless the high court applied common sense to legal doctrine, the Constitution might pave the way for the undoing of the United States.

Judge Posner writes that his book is about "the marginal adjustments in such rights that practical-minded judges make when the values that underlie the rights--values such as personal liberty and privacy--come into conflict with values of equal importance, such as public safety, suddenly magnified by the onset of a national emergency."

In his book, Judge Posner first reviews general constitutional principles, and then takes a provocative look at the constitutional issues that have emerged in the post-9/11 world. The general thesis is that the U.S. is faced with an ongoing national emergency owing to terrorism and possible WMD attacks, and that our democracy must accordingly arrive at a pragmatic balance between personal liberty and community safety. This concise 158-page book, skillfully written in plain, approachable language, predates some of the more recent legal and legislative enactments concerning the war on terror, but it is nonetheless a highly valuable, informative resource.

A prolific writer and highly respected legal scholar who serves on the Chicago-based U.S. Court of Appeals for the Seventh Circuit, Judge Posner achieved prominence in part as a proponent of the law and economics movement, a philosophy that evaluates incremental legal and public policy changes on the basis of costs vs. benefits. This analytical framework is even more controversial to some as applied to national security issues. In the book, the judge argues that "A minor present curtailment of civil liberties, to the extent that it reduces the probability of a terrorist attack, reduces the likelihood of a major future curtailment of those liberties."

Although the judge comes down on the side of giving the government more authority for national security and public safety, he can't necessarily be pidgeon-holed as a "national security hawk" (his term). For example, he supports habeas corpus rights for enemy combatants. Nor does Judge Posner appear to ascribe to the strict constructionist or original intent philosophy of constitutional analysis.

Much of the debate over how much force the government can employ against terrorists, how much snooping it can do, and so forth, without violating the Constitution, has revolved around the question of whether the United States is at war with terrorists or whether they are simply a particularly noxious form of political criminal. I argue that the terrorist threat is sui generis--that it fits the legal category neither of "war" nor of "crime." It requires a tailored regime, one that gives terrorist suspects fewer constitutional rights than people suspected of ordinary crimes, though not no rights.

[the Latin term sui generis generally means a class of its own or unique in its characteristics]

Civil disobedience is a term usually associated with protesters in the street. Judge Posner supports coercive interrogation, and suggests that U.S. security officials engage in "civil disobedience" of their own to obtain critical information from terror suspects in extreme situations such as a ticking time bomb scenario:

Many consciences will not be shocked at the use of torture when it will ward off a great evil and no other method would work quickly enough to be effective. The question arises whether we should relax the prohibition against torture in such a case or trust public officers to perceive and act on a moral duty that is higher than their legal duty. I favor the latter course.

Posner notes that President Lincoln engaged in this form of civil disobedience when he suspended habeas corpus during the Civil War.

To allay privacy concerns about electronic surveillance, the judge also advocates a new rule designed to forbid the intelligence services and the Justice Department from using intercepted communications for prosecuting most non-national security crimes:

It is more important that the public tolerate extensive national security surveillance of communications than that an occasional run-of-the-mill crime go unpunished because intelligence offers were not permitted to share evidence of such a crime with law enforcement authorities…If such a rule (with its exceptions) were in place, I believe the government could, in the present emergency, intercept all electronic communications inside or outside the United States, of citizens as well as of foreigners, without being deemed to violate the Fourth Amendment, provided that computes were used to winnow the gathered data, blocking human inspection of intercepted communications that contained no clue to terrorist activity.

In chapter one, Judge Posner suggests that constitutional rights are mainly created by the way the U.S. Supreme Court interprets the constitutional text rather than via the rights stated in the text of the Constitution itself. In his conclusion, he writes that "...the Constitution is not the sum total of civil liberties. Statutes and treats provide additional protections. Constitutional law is a looser garment, continually rewoven by Supreme Court justices mindful (one hopes) of the need to balance security and liberty concerns as the weights of these concerns shift.”

There is a lot more to this thought-provoking book, and we highly recommend it for your consideration. Agree or disagree, you will gain a greater understanding of the issues involved, and as such, this work is a unique addition to the public security vs. personal privacy debate.