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

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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.

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.

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.

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.

I am an interested lay-person, but not a lawyer or constitutional scholar. Posner does a good job of walking the reader through his arguments for (and against) particular interpretations of the constitution with respect to the treatment of (suspected) terrorists. I had no trouble following his reasoning, although I was not convinced in all cases. In particular, I was troubled by the suggestion that government officials should practice 'civil disobedience' where circumstances warrant. Overall, I would recommend this book to anyone who is interested in the constitutional aspects of the GWOT.

This book, Not A Suicide pact - The constitution in a Time of National Emergency by Appellate Justice Richard A. Posner, is a learned and considered tome that has many important points to make to those that cherish there liberty so much that they are helping to have Sharia Law completely take away their liberties. Simultaneously, Justice Posner displays an immense ignorance of Islam that ensures that our Constitution is indeed a suicide Pact.

The main discussion point is that this Global War by Islam (my term), otherwise, before Obama, known as the War on Terror, does demand that our constitution bend, or else it will shatter.

I do highly recommend that everyone concerned with the discussion regarding Liberty versus Security read this book for the learned and considered opinions rendered by Justice Posner.

He argues for a balanced, reasoned approach that allows the US to prosecute this war, not only against foreign terrorists in the USA, but especially against US citizens, including those that look western, because they are.

He does rail against profiling, believing that it will just annoy citizens, while lowering our guard against Western converts. The difficulty here is that profiling, as done by the Israelis, realizes that Islam is not a race, it is not an ethnicity, but it is an ideology, a belief system, so they profile that belief system. We would need to do the same. Islam is not a race. While most Arabs are Muslims, there are wonderful, peaceful Christian and Jewish Arabs. However, most Muslims are not Arabs, and there are numerous terrorists from various other ethnicities, including American and Northern European White.

It is the call to not criticize Islam publicly that is most perplexing; that actually does display his ignorance and foolishness. He rails against the Danish Cartoons that featured Muhammad, stating that they riled up the Islamic world, led to protests worldwide, and could lead to hateful attacks on the USA, which would rile Americans up, and Americans "might present a clear threat to retaining the loyalty of the U.S. Muslim community."

This is where the rails come off of Judge Posner's arguments and the complete and total ignorance with which he makes them. Judge Posner is a legal and Constitutional expert, and a concerned national security conservative, but he is not an expert on Islam or American Muslims and their loyalties, beliefs, and ideals.

Imagine if this book was written about Nazis in 1941, and he said we shouldn't offend Nazis globally nor our own American Nazis and their loyalties, beliefs, and ideals?

As Winston Churchill stated in The Second World War, Volume 1: The Gathering Storm, Mein Kampf and the Qur'an are comparable. Actually, according to the Center for the Political Study of Islam, and my own research, quantitavely the Qur'an has over twice as much hatred for Jews as Mein Kampf, and the actual hatred stated is far, far worse. So the Qur'an is the new "gold standard" for hatred of Jews, only it has been around for almost 1400 years. We have been ignoring it. Also, per the CSPI, with which I concur, there is far more hatred for Christians and other non-Muslims in the Qur'an than there is for untermenschen in Mein Kampf. We all know that Mein Kampf is a horrid little book by a hate filled maniac. We should, must, also know that the Qur'an makes Mein Kampf seem like a little kids version of the Qur'an in comparison.

If one studies the life of the prophet Muhammad, then one realizes that, as the Hadith state and the Sira states (with the Qur'an they make up the Sunna), Muhammad was not a nice guy. If he had been Attila the Hun or Genghis Khan, no one would mind, but 600 years after Jesus he was a warlord and the most perfect human being that ever existed; the example for the terrorists today. So would Judge Posner tell everybody to not criticize Hitler? Yet to criticize Muhammad, even in a humorous manner, as the cartoons did, sets of the Muslim world. The poor little darling can't stand to have anyone tell the truth about their god and their prophet. Christianity has been raked over the coals in the most heinous manner, including what many would consider sacrilege against Jesus, but all we do is write letters to the editor. Muslims kill people.

The Jihadist call themselves Jihadists; so why can't we call them Jihadists? So wrote U.S. Rep Sue Myrick (R-NC), as the Chairman of the US House of Representatives Anti-Terrorism Caucus to President Hussein Obama in 2010.

To say that telling the truth, per our first amendment right, about Islam and its horrid values and beliefs, is "hate speech" is to succumb to the jihadists, their cowering of America and Americans, and will lead to the implementation of Sharia law when the Muslims and their apologists become the functional majority in the USA, which is happening. For every Islamist there are 4 or 5 apologists. As Winston Churchill stated, appeasement is riding on the back of the alligator, feeding it constantly, hoping that you will be eaten last. The apologists, the appeasers, don't even know they are riding the back of that alligator, Islam, yet.

As one Dutch politician said, "We have to be nice to them (Muslims) now, so that they will be nice to us when they are the majority." Welcome to being a dhimmi, which is way past being an appeaser or apologist. It is being a 2nd class semi slave; a kafir.

When the rest of the world is overrun by Islam, will we still be able to play nice when we are alone, outnumbered 35 to 1? Will we be able to play nice when there are 10 billion Muslims in this world instead of just 1.7 Billion, and there are only a few hundred million Christians left? The demographics in America Alone: The End of the World As We Know It by Mark Steyn reduced to real numbers display the staggering magnitude of the problem. The quantity of Muslims in the world has been increasing by 32% per year since 1973. There are 1.7 Billion Muslims worldwide today, 550 million more than on 9/11. By 2050 or so, there will be 5 Billion, then 10 Billion well before 2100. Then there going to be 50 million American Muslims by 2050, 150 million or more by 2100. And beyond. Michigan will have an absolute majority of Muslims by 20560 or so. Our Michigan constitution will be replaced by Sharia law, and Judge Posner and every other judge will have to learn an entirely new jurisprudence system that is completely alien to American law.

The following folks are supported by the US House of Representatives Anti Terrorism Caucus:

Brigitte Gabriel, author of Because They Hate: A Survivor of Islamic Terror Warns America and They Must Be Stopped: Why We Must Defeat Radical Islam and How We Can Do It who has stated "peaceful Muslims are as irrelevant as peaceful Nazis"

Geert Wilders, head of Holland's 2nd largest political party, and producer of the film FITNA, states: "Yes, there are peaceful Muslims, but there is no such thing as peaceful Islam."

To borrow from General Jerry Boykin's presentation, Europe is GONE, Russia is GONE, England is GONE, Southeast Asia is GONE, Canada is GONE, Australia and Central and South America are going, going, GONE! We, the USA, cannot survive alone, not with the number of Muslims we have whose beliefs, values, and ideals are more antithetical to America than Hitler's were. Plus we do not have the resources, capabilities, and, most importantly, the will, to survive alone for more than 5 minutes, much less for decades and centuries.

Will we just continue to surrender, as we have been doing? Will there be a 2nd civil war? Will we fight WWIII? Or all of the above?

So while the judge has written a tome that is valid for a short decade or so, i.e., law enforcement and not alienating Muslims today so the FBI etc. can do its job, in the longer run this book has done a great deal of harm to America.

The greatest amount of work in the Qur'an, Hadith, and Sira (the Sunna), plus Islamist Jurisprudence, is political ideology about how Muslim women, and all non-Muslims should be treated as 2nd class semi-slaves. Approximately 70% of the basic documents deal with secular, on this earth, treatment of other people in the most heinous matter. About 7% is what most of us would consider a religion, and about 23% are just how Muslims should act in their lives to gain Allah's approval that don't harm other human beings.

Just because Muslims believe Islam is a religion, does not mean that non-Muslim Americans have to buy into what they are peddling. As long as we provide Muslims with first amendment freedom of Religion rights, rather than treating Muslims as the heinous political ideology followers they really are, then our Constitution is a suicide pact.

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.

As a layman I found Posner's book to be a very interesting way to learn about the issues with constitutional law not only in a time of crisis, but in general. He starts out with a discussion on how constitutional rights are created. It clarified many of the questions I had in my mind on how the constitution could be interpreted the way it is. It even made sense. He then explained how national security shapes those rights. He argues for a balance between security and rights.

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.

In another, perhaps better world, Judge Posner would have been a Republican nominee for the Supreme Court. His age reputedly barred him in this one.

Unfortunately, for this book, you could probably stop at the title, and that would give you the gist.

Judge Posner's thesis is that at a time of war, noone can be allowed to second judge the nation's security establishment. Moreover, he argues that judges are particularly unsuitable for the task. He offers examples from history to buttress his thesis.

Unfortunately, unless one starts out with the premise that his conclusion is intrinsically correct, his arguments read, at least to my eyes, as somewhat cyclical and self-serving.

After all, judges balance competing consideration in a vast array of other types of cases all the time. Why not in matters of national security? He also ignores key problems, at least in my reading:

1. Lincoln's actions WERE widely condemned, often fiercely resisted, and are considered by legal historians to be a blot on his legacy.

2. Korematsu, the Japanese internment case, was based on submissions to the Supreme Court that the Justice Department KNEW to be untrue. So the most famous instance of the Constitution not being a suicide pact was based on a lie, a lie that many DOJ official vigorously protested at the time.

As Judge Reinhardt said about Judge Posner, the problem is not in his writing. He is a fine writer, and his writing is enjoyable. The problem is with his thinking and conclusions.

Federal Appeals Court Judge Richard A. Posner is known for being both prolific and controversial. In addition to authoring one of the most important academic treatises in the field of law and economics, he is also known for writing on more controversial topics ranging from the 2000 Presidential election to sex. And it's when he writes on these topics, covering areas that are both controversial and likely to be the subject of high-profile Constitutional case law, that he's often at his most interesting, even when you don't agree with him.

In Not A Suicide Pact: The Constitution In A Time Of National Emergency, Posner examines the questions and conflicts that have arisen between national security and individual liberty in the wake of the War on Terror and asks the question of just how far Courts should go in either protecting liberty or granting leeway to the state to deal with a perceived emergency.

Posner's entire thesis with respect to the roles that liberty and safety should play in Constitutional jurisprudence can be summed up in the paragraph that opens the conclusion to the book:

"Constitutional rights are largely created by the Supreme Court, by loose interpretation of the constitutional text. Created as they are in response to the felt needs and conditions of the time, they can be and frequently are modified by the Court in response to changes in those needs and conditions. A constitutional right should be modified when changed circumstances indicate that the right no loner strikes a sensible balance between competing constitutional values, such as personal liberty and public safety. A national emergency, such as a war, creates a disequilibrium in the existing system of constitutional rights. Concerns for public safety now weigh more heavily than liberties in recognition that the relative weights of the competing interests have changed in favor of safety. That is the pragmatic response, and pragmatism is a dominant feature not only of American culture at large but also of the American judicial culture."

If you're someone like myself who views individual liberty and the protections guaranteed by the Bill of Rights as immutable, a paragraph like that is bound to make your blood boil. And, I will admit that there were several times when I found myself wanting to argue with Posner over one obscure point or another (which I imagine would be a fascinating intellectual experience in itself).

Posner's approach, however, is entirely understandable for two reasons. First, it is entirely consistent with his broader adherence to law and economics, which is all about balancing, and pragmatism, and finding efficient outcomes, as a legal philosophy. Second, he's a Federal Judge and, with rare exceptions, the approach that he suggests in this book is entirely consistent with the way that most Federal Judges seem to view questions of the proper line to draw between individual liberty and public safety.

That doesn't mean that Posner is correct, though.

First, there's his view of individual/constitutional rights as something that are strictly judge made, rather than something that exist independent of the whim of the judiciary. Because of what Posner contends to be the inherent vaguenesss of the Constitutional text, it is up to Judges to determine the boundaries of constitutional liberty. The problems with this approach are replete and exist throughout the 200+ years that the Supreme Court has existed. All too frequently, judges have interpreted portions of the Constitution too narrowly, or too broadly, or just ignored it entirely and ruled based on how that though the case should be decided. Leaving the definition of civil liberties strictly and exclusively in the hands of an unelected judiciary is, in the end, a recipe for disaster.

Given Posner's views on the malleability of constitutional rights, it isn't entirely surprising where he comes down on the debate over when and how much individual liberty should be sacrificed in the name of public safety at a time of supposed national emergency, such as that represented by the War on Terror. With very few, though very interesting exceptions, Posner would give more power to the state to fight the threat posed by terrorism -- notwithstanding the fact that, except for September 11th, there hasn't been evidence of a single foreign terrorist plot on American soil in over five years -- at the expense of individual liberty and privacy.

Another area which Posner brushes over is the fact that national emergencies have, in the past, served as the justification for increases in the size, scope, and power of government. Posner briefly addresses this issue by citing examples from the Post-WW2 and Cold War eras of government regulation that has since abated. In reality, of course, the end of each of these supposed emergencies still resulted in a Federal Government that exerted more control than it did at the time the "crisis" started.

Of course, much of that is explained by the fact that local incumbents in law enforcement find it in their interest to point out how bad things would be under a second term.

There are some points one which I must admit that Judge Posner is right. There is a distinct difference between law enforcement and intelligence gathering. And there seem to be far fewer Constitutional limitations on intelligence gathering, which logically must be considered part of the Article II power of the Executive Branch, than on law enforcement, which finds itself limited by the 4th, 5th, and 6th Amendments, just to name a few.

And maybe that makes sense.

The purpose of intelligence gathering is, or at least, should be, preventing attacks on the homeland, whether from terrorists or foreign nations, from happening. Law enforcement steps in only after an attack has occurred. In the case of terrorism, law enforcement is an admittedly ineffective tool.There's no point in filing criminal charges against the 19 men who hijacked planes on September 11th, but if we'd been able to break up that conspiracy on September 9th........well, that wouldn't have been a bad thing after all.

In the end, as Posner points out, and as reluctant as I may be willing to admit, it may well be true that there is a trade-off between liberty and security that we all will have to make a decision on in the near future.

On each side, there's an extreme that is entirely unpleasant. Too little government vigilance in the face of a real terrorist threat could lead to the deaths of millions. Too severe a restriction on individual liberty could lead to a free reign for destruction.