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

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.

The clash between individual civil rights and collective national security has never been far removed from American law and history. In NOT A SUICIDE PACT, judge Richard A. Posner considers a number of hot button issues that rang even in President Lincoln's day when he suspended habeas corpus to deal with what he saw as a threat to the very existence of the Union. Today, when the ACLU demands that terrorist prisoners in foreign jails like Guantanamo be accorded the same rights as any other criminal defendant, Posner places in historical perspective why Lincoln did what he did and why President Bush does what he does. Posner's very title of his book suggests that civil rights are not absolutes, an idea that he admits is anathema to civil libertarians who have been trained to see the constitution as just such an absolute even if they somehow feel uneasy at admitting that it is indeed a suicide pact. At this, Posner says no, it is not. In fact, when the Founders wrote the constitution, they knew that they could not have foreseen how the twists and turns of future events might tint the lens of future courts who seek to interpret contemporary events under the wording of long established precedent. Posner suggests that one very important reason that the United States has survived and thrived is that the Founders deliberately wrote the constitution in such a manner as to provide guidance rather than straight-jacket binding. Those issues that bedevil us today, ranging from illegal arrest and detention to torture to free speech and to the limits of privacy, were all issues well-known to them. The brilliance of the Founders is that Posner argues that they knew that these issues would continue to vex future generations in manners that future technology would only exacerbate the difficulty in drawing a line in the constitutional sand between individual rights as citizens and collective rights as a people. Posner relentlessly urges the reader to view this ever shifting line under the lens of security of the one versus security of the many. When he writes that the President of the United States is the primary arbiter of such disputes, then he acknowledges that forceful presidents like Lincoln and Bush could be balked by a hostile press and a recalcitrant House/Senate duo. Lincoln proved to be up to the task of going about his business of saving the Union. Bush may very well prove himself to be similarly up to much the same task. In NOT A SUICIDE PACT, judge Posner cogently sets forth the case that in the words of Star Trek's Mr. Spock, the needs of the many must outweigh the needs of the one.

Dr. Posner addresses a topic that I have never heard addressed by the national media: how our concerns in the age of war on terror need to strike a balance between our needs for civil liberties and our needs for national security. Posner takes this balance and attacks those concerns that we have all heard about: civil right of those incarcerated at Guantanamo Bay; FISA concerns and why the Bush administration has avoided the FISA court; examples of what kinds of acts have been ruled as permissible "search and seizure" tactics. By placing our current concerns in context of existing law and court precedent, the author calmed me down and helped me understand that our courts are not driven by ideology, but are working out careful solutions to the legal challenges of our time.

Richard Posner argues in the title of this book that our Constitution is not a suicide pact. And in the book, he says that we need to find a balance. If we fail to preserve our rights, we'll have nothing left that is worth defending. But if we always refuse to take any action against external enemies, it won't be long before we'll have nothing left to defend. On the whole, we have the power to do all sorts of things. But that does not mean that we have the authority or legal justification to do them. And Posner tends to argue that we rarely need more authority. Here, I'll give a (possibly silly) example which is not Posner's. Obviously, almost any policeman or soldier (or for that matter, high government official) often has the power to kill someone. And in general, we should not remove such power. But in no way does that mean that we have given (or ought to give) people the authority to commit murder, nor does it mean that we ought to legalize murder! The author addresses a number of issues in our fight against modern terrorism. One is rights against detention. We might like to subject terrorists to trials by a military tribunal. But laws allowing us to do so are a clear threat to civilian rights (as we could simply call anyone a terrorist and subject them to such a trial). Here, Posner recommends that a civilian court make the initial decision on whether to assign an accused person to such a tribunal. I think that's a good idea. Next we read about topics such as interrogation, search and seizure, and surveillance. The author makes a case for our present laws being sufficient here. As for torture, he sees no need to legalize it. Besides, he argues that torture is rarely even recommended as a defense against terror. It is generally used to intimidate people and to extract totally bogus confessions from them, something we do not need to do. After that, we read about incitement and hate speech. Just as an example, one can imagine violent reactions (possibly even from non-Muslims) to hate speech by Muslims, as well as similar reactions (possibly even by Muslims) to hate speech against Muslims. All of this can be undesirable, and we might even need some new laws against hate speech, but Posner argues that we do not need to do anything our Constitution prohibits here. What about the Right to Privacy? Once again, our present laws seem reasonable, but circumstances may be making it more difficult to enforce them. The author says that we may want to make slight modifications to present laws so that we do not have mass media publishing military secrets. That's within the framework of the Constitution. Similarly, the same sort of laws ought to be used to protect individual rights to privacy. This is an interesting book, and I recommend it.

Go immediately to page 51. Judge Richard Posner charges the so-called civil libertarian community with willful ignorance. They refuse to deal with facts that get in the way of their absolutist all or nothing ideology: "They are comfortable defending liberties recognized by law but uncomfortable assessing threats to national security about which they know little and don't want to learn more." A few pages earlier, Posner is critical of civil libertarians of not "always (being) careful about history..." Alas, the author may be too polite and gentle with his rhetoric. I perhaps can be a bit more brutally frank. These civil libertarians are pseudo intellectual "elites" unable to think and follow a logical argument. They are snobs who prefer living in a utopian dream world. Their degrees are often phonier than a three dollar bill. They obtained them primarily by placing their wet finger into the air to see which way the leftist zeitgeist will blow. We cannot allow such immature human beings to endanger our country. They must be marginalized and told to join the other children in the romper room. Another reviewer remarks that "You may agree with or be appalled by Posner's cost-benefit analyses, but..." Excuse me, but let me introduce everyone to the real world. A viable society is inherently compelled to consider costs versus benefits when making life and death decisions. This is not pragmatically or morally optional. The Constitution is not a suicide pact. Our Hobbesian concerns must be addressed before John Locke's words of wisdom can do us any good. Are the Islamic nihilists a legitimate threat, or is the Bush administration indulging in exaggeration to enhance its political power? This is the central question of our era. Judge Posner has come to the conclusion that Osama Bin Ladin and his buddies want to destroy Western Civilization. Indeed, they want to murder everyone who is not a committed Muslim extremist. I highly recommend Posner's concise but brilliant work. You should not only purchase a copy for yourself---but also your friends and legislators. Are you planning to vote in November? If so, you must read Not a Suicide Pact before casting your ballot. The lives of your loved ones may depend on it. David Thomson Flares into Darkness