Not a Suicide Pact: The Constitution in a Time of National Emergency (Inalienable Rights) (Hardcover)

by Richard A. Posner (Author)
Key Phrases: radical imams, coercive interrogation, modern terrorism, United States, Supreme Court, Fourth Amendment (more...)

Editorial Reviews

From Publishers Weekly
Posner, who sits on the U.S. Court of Appeals for the Seventh Circuit, inaugurates a new series on inalienable rights. The series is intended to stimulate debate, and Posner's work will do exactly that, drilling energetically into a set of issues raised by what he sees as an unprecedented emergency. In the fact of terrorism and the threat of WMDs, he argues, the scope of constitutional rights must be adjusted—i.e., narrowed—in a pragmatic but rational manner. Saying we must balance the harm new security measures inflict on personal liberty against the increased security those measures provide, Posner comes down, in most but not quite all respects, on the side of increased government power. He advocates that coercive and even brutal forms of interrogation should be allowed in proper circumstances, that all communications within the United States should be subject to interception, and that government should have authority to enjoin publication of classified information. Posner (An Affair of State) would impose limits and qualifications on these assertions of government power, but even so, his views will provoke Category 5 protest from civil libertarians. You may agree with or be appalled by Posner's cost-benefit analyses, but the author's premises are explicit, his writing is economical and precise, and he ably makes the case for his side in the national debate. (Sept. 18)
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From Booklist
Posner, a judge in the U.S. Court of Appeals, addresses the intersection of personal liberties with public safety that has been strained since the 9/11 terrorist attacks. Posner takes a pragmatic approach, recognizing a need for flexibility to prevent breaking our system of laws, national security, and individual liberties. Recognizing that terrorist acts are not easily classified as either "war" or "crime," Posner sees the need to contextualize our responses, adjusting civil liberties to accommodate the need for public safety. Underlying much of the contemporary debate is the issue of which branch of government should decide these issues in times of national crisis--the courts or the executive branch. Posner sees constitutional rights as a function of Supreme Court rulings that are primarily based on the practical consequences perceived by the majority of jurists, in contrast to some perceived legal logic. He argues that judges are not especially well equipped to deal with national-security issues. Civil libertarians may take issue, but readers on all sides will appreciate Posner's outspokenness. Vernon Ford
Copyright © American Library Association. All rights reserved

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Product Details

• Hardcover: 208 pages
• Publisher: Oxford University Press, USA (September 1, 2006)
• Language: English
• ISBN-10: 0195304276
• ISBN-13: 978-0195304275
• Product Dimensions: 8.4 x 5.8 x 0.9 inches
• Shipping Weight: 11.2 ounces (View shipping rates and policies)
• Average Customer Review: 3.6 out of 5 stars See all reviews (17 customer reviews)
• Amazon.com Sales Rank: #235,389 in Books (See Bestsellers in Books)

• This item is part of The Inalienable Rights Series.

Customer Reviews

Most Helpful Customer Reviews

48 of 59 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

By	Jonathan Groner (Silver Spring, MD) - See all my reviews (REAL NAME)

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.

21 of 27 people found the following review helpful:

4.0 out of 5 stars Insightful, biased, brilliant, shrill - Posner!, September 27, 2006

By	James W. Picht (Louisiana, USA) - See all my reviews (REAL NAME)

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.

8 of 12 people found the following review helpful:

4.0 out of 5 stars Judge Posner on the War on Terrorism and the Law, November 22, 2006

By	Ronald H. Clark (WASHINGTON, DC USA) - See all my reviews (TOP 500 REVIEWER)    (REAL NAME)

Judge Richard Posner (who has served on the 7th Circuit since 1981, as well as having a long career at the University of Chicago Law School) remains one of our most incisive and prolific legal commentators. Posner originally wrote in the areas of legal theory, Justice Holmes, legal education, and law and literature, while on the side helping give birth to the influential law and economics movement centered at Chicago. His more recent work has focused on national security issues, including the U.S. intelligence system, preventing surprise attacks and the concept of catastrophe.

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.