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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, August 31, 2006
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.
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23 of 30 people found the following review helpful:
4.0 out of 5 stars
Insightful, biased, brilliant, shrill - Posner!, September 27, 2006
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.
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3.0 out of 5 stars
Timely, Important Topic but Poorly Executed, May 24, 2010
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.
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