50 of 62 people found the following review helpful
4.0 out of 5 stars A provocative case for exceptional measures during a national crisis
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...
Published on August 31, 2006 by Jonathan Groner
3 of 3 people found the following review helpful
3.0 out of 5 stars Timely, Important Topic but Poorly Executed
Judge Posner's topic in this book is clearly timely and important. At the root of his inquiry lies an important issue: whether the definition and scope of civil liberties should remain constant through changing times. The judge's answer to that question is that they should not remain constant. Rather, what he calls civil liberties should have their definitions and...
Published on May 24, 2010 by Jason
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50 of 62 people found the following review helpful
4.0 out of 5 stars A provocative case for exceptional measures during a national crisis,
This review is from: Not a Suicide Pact: The Constitution in a Time of National Emergency (Inalienable Rights) (Hardcover)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.
25 of 32 people found the following review helpful
4.0 out of 5 stars Insightful, biased, brilliant, shrill - Posner!,
This review is from: Not a Suicide Pact: The Constitution in a Time of National Emergency (Inalienable Rights) (Hardcover)Richard Posner is perhaps best known for his work on the economic analysis of law (his text by that name is the standard for the discipline). His work on catastrophic risk, which forms the basis for his analysis in _Not a Suicide Pact_, draws heavily on the reasoning used in his work in the area of "law and economics."
This type of reasoning isn't everyone's cup of tea. It depends on weighing the costs and benefits of incremental changes in policy ("marginal costs" and "marginal benefits" in the jargon of economics), asking whether the expected benefits of Policy A outweigh the expected costs of implementing it, whether the possible costs of not implementing it justify going ahead with it. That wouldn't be so controversial an exercise if Posner weren't applying it to rights and security.
This book is short (158 pages of text) and not difficult for a layman to read and understand. Its bottom line is that improvements in national security may have a cost in terms of more narrowly defined rights, and conversely, more broadly defined rights may have a cost in terms of diminished security. He asks whether the costs of restricting rights might not be outweighed by the security benefits, and he concludes that they may be. He admits that those expected costs and benefits can't easily be measured (the entire exercise is dominated by "imponderables"), but he chooses to weigh them anyway in order to reach his conclusions.
While I don't agree with Posner's conclusions (I don't weigh the costs and benefits of restricting rights the same way he does), I think his analytical framework is a useful starting point for conversation on the issues raised by our war on terror. If one doesn't like this type of analysis, one isn't obliged to use it, but that appears to be a matter of personal preference without any strong basis in logic. Judge Posner likes logic, even if he has a habit of loading it to give him the answers he wants. I don't fault him for that, because his use of logic at least makes his assumptions and the path to his conclusions quite clear. Many of those who have negatively reviewed this book, e.g., M. Kakutani at the NY Times, seem horrified that he dares to use logic at all, not that his logic takes him where they would prefer that it didn't. Kakutani argues that there are absolute rights and ideals that we shouldn't restrict (hence, by implication, Posner shouldn't even be talking about possible benefits of restricting them), but that's essentially a religious argument, a statement of values. If we're forced to argue on those grounds, then the argument reduces to an argument about what's virtuous, lovely, or of good report. Anyone's opinion on that is logically as good as anyone else's. In the pragmatic world inhabited by Posner and most of the rest of us, there really are tradeoffs between liberty and security, and it's dangerous _not_ to ask what they are and how big they should be.
Whether one agrees with Posner or not, I think that this book is a valuable contribution to our national discussion on rights, security, and the war on terror. It doesn't rise to Posner's usual level of well-crafted prose, showing signs of having been hurried into publication. For the same reason, Posner's arguments here aren't always as clean and well thought-out as they usually are. His tone is more shrill than I'd like, his thumbs more firmly planted in the eyes of "civil libertarians" than is really necessary. For those deficiencies, it's still a valuable book, and it offers the reader a useful tool for thinking about the issues it raises. One doesn't have to see things Posner's way to use the insights he offers.
3 of 3 people found the following review helpful
3.0 out of 5 stars Timely, Important Topic but Poorly Executed,
This review is from: Not a Suicide Pact: The Constitution in a Time of National Emergency (Inalienable Rights) (Hardcover)Judge Posner's topic in this book is clearly timely and important. At the root of his inquiry lies an important issue: whether the definition and scope of civil liberties should remain constant through changing times. The judge's answer to that question is that they should not remain constant. Rather, what he calls civil liberties should have their definitions and scopes changed to reflect the changing times. Judge Posner's treatment is stylistically well-written and easy to read but his arguments felt underdeveloped and flimsy at times. The reason that I only gave this book three stars is because the judge's execution of his inquiry lacked in depth and in nuance. Thus, while it was a good, interesting treatment of a timely topic it fell short of the mark that I expected from this particular author.
My first objection to Judge Posner's treatment is his conflation of the concepts of privileges and of rights protected by the Constitution. Note I phrased the latter as "rights protected by the Constitution" and not "constitutional rights." Rather than recognize the substantial differences between rights and privileges, Judge Posner chooses to deal with them at a higher abstraction which obscures those differences. While privileges and rights can both be referred to collectively as "civil liberties," the author does violence to the distinctions between them when he deals with both of them as if they were identical. This is what Judge Posner does wrong when he argues for the ability of the government to redefine and alter the scope of "civil liberties." While the federal government is free to make those alterations to privileges, the very nature of a right prevents any government from making alterations to rights. Yet, the author simply ignores these differences without any explanation.
My other primary objection to Judge Posner's treatment is the lack of robustness in his arguments. Some of the arguments were logical and seemed well thought-through. Those were a pleasure to read, even when I disagreed with them. However, there were many situations where Judge Posner seems to make conclusory statements without much, if any, analysis. For example, on page 10, the judge argues in three sentences that the need for judicial intervention is lessened when the President and Congress agree. In that argument, the coup de grace was his statement that the Congress under the Republican Party was not simply a rubber-stamp for President Bush's policies. Similarly, on page 70 Judge Posner argues in five sentences that the Constitution implicitly grants essentially dictatorial powers to the President to prosecute a war because of a "law of necessity." In fact, this theme reappears several times when the author argues that it would be better to deny the President certain powers and then to have him exercise those powers in contravention of law than to grant him the powers and explain the limits on those powers. The author even argues that an "extralegal approach to the exercise of emergency powers" is an attractive alternative in emergency situations to delineating powers with which the government actors must comport. Coupled with, and magnifying, these rhetorical difficulties is the author's decision not to provide citations for his statements, instead relying on a bare bibliography at the end. The lack of footnotes or endnotes handicaps the reader from easily being able to fill in the gaps in the author's reasoning in the text.
Unfortunately, Judge Posner's book does not live up to the quality expected of his writing, especially when the topic is so controversial as this one. The flimsy foundations and unsupported conclusions of some of his arguments did his position a major disservice. The book actually felt like it was rushed and that if Judge Posner had spent more time elucidating his arguments and supporting them with at least endnotes, they would have been more persuasive. As it stands, this book is a better insight into Judge Posner's personal thoughts and feelings on the question of whether the federal government should be constrained by law during a time of national crisis than it is a decent treatment on the topic.
2 of 3 people found the following review helpful
5.0 out of 5 stars Not for the faint of heart...,
5.0 out of 5 stars A thorough and balanced review of Rights in a national emergency,
8 of 13 people found the following review helpful
4.0 out of 5 stars Judge Posner on the War on Terrorism and the Law,
His newest book is subtitled "The Constitution in a Time of National Emergency." While as I shall discuss I find his approach not particularly persuasive, and involving clever distinctions and word manipulation, this book is probably the best way to get into the whole issue of the current "war on terror" and how the legal system should adjust (if it should adjust at all). Posner's main thesis is that what he terms "marginal adjustments" in rights are clearly mandated by the severity of the "enemy" threat. True to his law and economics background, the Judge wants to apply a rather straightforward cost/benefit form of analysis, which results in a balancing of rights against national "safety and liberty." I seem to recall that this approach was fairly well discredited when the Supreme Court applied it in the 1950's and 60's to issues of free speech, but no matter. Posner feels that what he terms "generalist judges" don't have the necessary background to deal with these issues, while "national security judges" (including presumable himself) do have the special insights that are necessary. In fact the Judge suggests that the courts ought to stay out of the issue pretty much, and let Congress and the President handle it. After all, most rights are mere creations of the courts and therefore we should not flinch if they are curtailed.
In short, as with any form of balancing, when on the one side of the scale reside national security and the survival of the American nation, it is quite difficult to offset that weight on the scale with mere legal rights arguments. Posner takes numerous shots at shortsighted "civil libertarians" whom he rightly identifies as opponents of his approach. Surprisingly, for a federal judge, Posner thinks the role of precedent (such as the post Civil War Milligan decision) should not play a substantial role here. In any regard, the Judge assures us that any denting in our rights will be only a "minor" adjustment that will be rolled back when the present emergency has passed. One wonders, however, if the executive branch will ever announce that the emergency is over. Individual chapters address such topics as detention (ok for "unlawful combatants"), brutal interrogation, and free speech and profiling. Posner pretty much writes the right to privacy out of the constitution, arguing that as long as computers do the initial review of phone taps and letters, any privacy concerns should be minimal.
I believe the best way to approach this book is to read the introduction and the conclusion before turning to the remaining contents. Such an approach indicates "what is afoot" in Posner's analysis. While admittedly I am somewhat underwhelmed with the Judge's approach, this remains an extremely valuable book on this topic. Posner makes many of the administration's arguments but with a skill and perspective hardly likely to be matched by the administration's own defenders, including John Yoo. These are difficult issues and Posner is an extremely capable person to put forward this particular viewpoint. Even if you cringe at points, give the Judge a fair hearing because he really puts a number of these issues into a meaningful perspective.
2 of 4 people found the following review helpful
3.0 out of 5 stars A book of Habeaus Corpus,
2 of 4 people found the following review helpful
4.0 out of 5 stars Interesting introduction to the subject,
25 of 41 people found the following review helpful
1.0 out of 5 stars Scary Stuff,
Judge Posner unfortunately uses his considerable knowledge of the law to argue for the skirting of basic rights guaranteed under our Constitution. But his entire logical edifice, no matter how erudite, is based on one fatally flawed premise - that somehow, our Constitution, based on fundamental rights is somehow incapable of dealing with barbarity. And somehow the current crop of terrorists are so special that they deserve to be put into a unique category that our founding fathers could never imagine.
It is very convenient to accuse present day civil libertarians of not being in touch with history as it is undoubtedly true that too many of us, products of a failed education system are not very well versed in history. But to accuse our founding fathers as historically naive is laughable. Just Jefferson's knowledge of history alone was more profound than the combined knowledge of our current Supreme Court. We were blessed by having a legal framework made up of men who were some of most brilliant minds of their day, and who were very much in touch with the human condition and all of its complexity. Compared with them, Judge Posner is but a speck of a thinker.
0 of 1 people found the following review helpful
4.0 out of 5 stars Interesting introduction to constitutional law,
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.
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Not a Suicide Pact: The Constitution in a Time of National Emergency (Inalienable Rights) by Richard A. Posner