Not a Suicide Pact: The Constitution in a Time of National Emergency.(Book review)

Publication: Stanford Law Review

Publication Date: 01-APR-07

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COPYRIGHT 2007 Stanford Law School

NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY. By Richard A. Posner. Oxford: Oxford University Press, 2006.



INTRODUCTION I. CASE STUDIES A. Electronic Surveillance B. Coercive Interrogation C. Preventive Detention D. Ethnic Profiling II. THE DISAPPEARING CONSTITUTION CONCLUSION

INTRODUCTION

Precommitments are most essential when we feel most compelled to break them. Constitutional law, our collective pact of precommitments, is never more important than in periods of crisis. History suggests that when democracies are captured by fear, they react in predictably troubling ways, in particular by targeting the most vulnerable for selective sacrifices that the majority would not likely be willing to endure if the sacrifices were evenly distributed. The Constitution is predicated on the paradoxical understanding that democracy's defects can be offset by compelling the majority to adhere to certain norms precisely when the democratic process would categorically reject them.

If it is to function as a restraint on the politics of fear, the Constitution must be interpreted not only with an eye toward its purpose and history, but with an understanding of the profound pressures that are likely to be at play when a polity in fear demands action. Otherwise, the forces that favor repression within the ordinary political channels will infect constitutional law as well. Holding the line during security crises is no simple matter. One need only think of the Supreme Court's shameful ratification of the internment of 120,000 Americans and immigrants of Japanese descent during World War II, or its validation of prosecutions for anti-war speech during World War I. Political repression during times of crisis is nearly always deeply regretted as a mistake after the fact. If we are to learn from such mistakes, constitutional law is the place to locate and instantiate those lessons, in the hope that the country will exercise restraint the next time around.

Richard Posner's Not a Suicide Pact: The Constitution in a Time of National Emergency reflects none of this understanding. Instead, Posner treats the Constitution as little more than an invitation to pragmatic policy judgment, and then employs that judgment through speculative cost-benefit balancing to find unobjectionable most everything the Bush Administration has done thus far in the "war on terror," including coercive interrogation, incommunicado detention, warrantless wiretapping, and ethnic profiling. One of the only initiatives he identifies as constitutionally problematic is the Administration's short-lived attempt to deny judicial review to U.S. citizens detained in military custody in the United States as "enemy combatants"--a position the Administration itself abandoned after the U.S. Court of Appeals for the Fourth Circuit, probably the most conservative federal circuit in the country, rejected it as a "sweeping proposition." (1) Indeed, Posner's Constitution would permit the Administration to go much further than it has--among other things, he defends indefinite preventive detention, banning Islamic extremist rhetoric, mass wiretapping of the entire nation, and making it a crime for newspapers to publish classified information, such as when the Washington Post broke the story on the CIA's secret prisons, or "black sites," or when the New York Times disclosed the existence of the National Security Agency's (NSA) warrantless wiretapping program. All of this is permissible, Posner argues, because unless the Constitution "bend[s]" in the face of threats to our national security, it "will break" (p. 1). When Posner is finished bending the Constitution to these conclusions, however, one might justifiably ask what is left to preserve from "breaking."

Ironically, Posner reaches these results with a constitutional theory more in keeping with Chief Justice Earl Warren than Justice Antonin Scalia. Eschewing popular conservative attacks on "judicial activism," Posner argues that given the open-ended character of many of the Constitution's most important terms--"unreasonable" searches and seizures, "due process of law," "equal protection," and even "liberty" itself--it is not objectionable, but inevitable, that constitutional law is judge-made. He dismisses the constitutional theories of textualism and originalism favored by many conservative judges and scholars as canards, for in his view neither the Constitution's text nor the history of its framing and adoption are very informative on most of the hard questions of the day. Constitutional law, he insists, "is intended to be a loose garment; if it binds too tightly, it will not be adaptable to changing circumstances and will leave too little room for the play of democratic forces" (pp. 7-8).

But having rejected textualism and originalism, Posner proceeds unwittingly to offer a book-length demonstration of what textualists and originalists most fear from constitutional theorists who emphasize the document's open-ended and evolving character. In Posner's approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on others. Posner is best known as one of the founding fathers of the law and economics movement, so it is hardly surprising that his judgments are powerfully informed by an economist's fetish for cost-benefit analysis. (One might almost say determined, except that, as we will see, the valuation of costs and benefits in this area is almost entirely indeterminate.) In the end, constitutional interpretation for Posner is little more than an all-things-considered balancing act--and when the potential costs of a catastrophic terrorist attack are placed on the scale, the concerns of constitutional rights and civil liberties are almost inevitably outweighed. The further one reads in the book, the further the Constitution fades into the background, supplanted by Posner's ad hoc and often unsupported speculation about the putative costs and benefits of various security initiatives.

This Review will first discuss Posner's analysis of several specific security-liberty issues, in order to illustrate how his "econ-stitutional" method works in concrete scenarios. I will then turn to the broader implications his theory has for constitutional law, which in my view are quite dangerous. In his hands, the Constitution's "loose garment" appears to do no "binding" work whatsoever, and its only function is to obscure the subjective value judgments made in its name.

I. CASE STUDIES

A. Electronic Surveillance

Shortly after the terrorist attacks of September 11, 2001, President Bush authorized the NSA to conduct wiretapping of telephonic communications between al Qaeda suspects abroad and persons within the United States. Such surveillance would not have been controversial had the program proceeded under the auspices of the Foreign Intelligence Surveillance Act (FISA), which expressly authorizes national security and foreign intelligence wiretapping of "foreign agents," including members of international terrorist organizations, as long as the wiretapping is approved by a federal judge. (2) But President Bush decided to bypass the judicial review required by FISA, and instead authorized the NSA to conduct the surveillance without warrants, in contravention of a provision in FISA that makes such warrantless surveillance a criminal offense. (3) In 2006, a federal court declared the NSA program unconstitutional, and in January 2007, Attorney General Alberto Gonzalez announced that the NSA program would be terminated, and that any future surveillance would be carried out pursuant to, rather than in contravention of, FISA. (4)

Posner not only has no problem with the NSA program, but would deem constitutional a far more sweeping initiative that subjected every phone call and email in the nation, domestic as well as international, to initial computer screening for...

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