Sunday, November 1, 2009

Review of Posner's Not A Suicide Pact

Not a Suicide Pact
Richard A. Posner
Oxford University Press, 2006
171 pages

The first time I remember coming across Richard Posner's work was in grad school when I read Frontiers of Legal Theory. Posner, a sitting judge on Seventh Circuit, is a renowned academic famous for his economic analysis of law. I picked up this particular book because Posner's positions on various current issues are almost unpredictable and certainly beyond categorization in traditional political labels. This particular book, Not a Suicide Pact, deals with the balance between demands for security and the pressure to protect constitutional rights in the post 9/11 era. While I believe this book would be an interesting and thought provoking read for anyone concerned with this subject, Posner's reliance on a rational choice analysis for legal theory is not a convincing criteria for judicial decisions.

Posner does an excellent job summarizing the problem at hand: we are in a conflict with a non-state force that legally neither our criminal law nor our regulation of interstate war is capable of handling. Terrorists pose an existential threat to our nation, something even groups like the Mafia, the Ku Klux Klan, and national gangs do not. On the other hand, they are not focused in any area of the world, do not have an infrastructure, do not represent the people they live with, and are often in our midst, disguised as one of us. The Bush Administration had the unenviable duty of finding a legal pattern to work with in respect to terrorism while being under a perceived imminent threat of another attack.

Generally, Posner agrees with what the Bush Administration has tried to do, taking issue with a few legal niceties (the Unitary Executiy Theory in particular) but generally believing the Executive has not overstepped its appropriate bounds. Posner takes the view that we should maximize both liberty and safety via rational choice theory: the moment a decrease in liberty does not bring about an equal or greater increase in security is the balance we should aim for. This a dynamic, not a static, point: after 9/11, we clearly needed an increase in security even at the cost of some liberty. Civil libertarians, who argue no decrease in liberty can ever be justified, do not take the terrorist threat seriously and fail to recognize that the greatest threat to liberty in this nation would be another terrorist attack and the subsequent security measures taken.

While a number of hot button issues relating to security and liberty are discussed (the "rights" of people detained without trial is particularly interesting), I want to focus quickly on Posner's view concerning intelligence gathering. Many people took issue with the Bush Administration using wiretaps on Americans being contacted or contacting individuals outside of the United States, claiming this is a violation of the Fifth Amendment. This is only true if the information is used against a U.S. national in a conviction. The President, as Commander in Chief, needs to be able to collect information about our enemy, a power that has never been seriously questioned. Given the massive amount of communication that needs to be sifted and analyzed, obtaining a warrant in every situation is basically impossible. This is not gathering evidence for a criminal trial; it is gathering military intelligence, a power the President has sans warrant. If the government abuses this power for political or other non-military ends, so many people of so many political ideologies are involved that a leak to the current 24/7 media is almost inevitable, with devastating consequences to the administration abusing the power. Enough leaks of legitimate government programs existed under Bush to prove this point.

Richard Posner's book is certainly worth reading for these interesting and novel ideas concerning the balance of security and liberty and which aspects of our government should be handling them during and after an emergency. As I said at the beginning, though, I find Posner's rational choice approach too impermanent and vague to avoid an abuse of power. Posner treats the Constitution almost as a list of suggested ideas rather than as hard and fast boundaries between the government and the branches of government versus one another. This line is blurred enough as is. The Supreme Court's "interpretation" of the Constitution has lead to a great many restrictions that were not included by the Founders; agreeing with Posner, we are now having a hard time dealing with this straight jacket, but leaving the division of power to actors who have motivations outside of the good of the nation is not the answer. I had a hard time determining exactly what it is Posner proposes for us to do, what criteria he proposes for us to follow to know when the line has been crossed outside of a subjective opinion on when the function of liberty and security has reached its maximum (see the first two reviews in the "What Others Have Said" section to view two opponents of Bush disagree as to where the line should be drawn in a cost-benefit analysis). Given all, I would recommend reading this book because of the unique (at least to me) views he gives on free speech, interrogation techniques, and intelligence gathering, but it is not a must read.

What Others Have Said:

"Not Just Because Bush Says So", Washington Post, 2006

Judge Posner's "Not a Suicide Pact, Concurring Opinions, 2006

"Conservatives" cheer on Judge Posner's highly un-conservative defense of federal police powers , Glenn Greenwald, 2006

"Pragmatism Trumps Suicide", New York Sun, 2006

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