What is the relationship between the U.S. Constitution and the current struggle against the perpetrators of jihad against the West? Should the masterminds of, and participants in, the suicide bombings of September 11 and other terrorist acts be protected by the Bill of Rights and the Geneva Conventions? In several important decisions by the U.S. Supreme Court and other federal courts, judges have declared that the Geneva Conventions and the Fifth Amendment’s Due Process Clause provide protections for suspected terrorists and that the executive branch must seek the authority of Congress before it can try captured Al Qaeda fighters in military tribunals, as President Bush has sought to do. One federal judge has declared that, before the administration may eavesdrop on conversations between suspected foreign terrorists and those in the United States, it must seek warrants under the Foreign Intelligence Surveillance Act from a special court designated by Congress for that purpose. The New York Times and several other newspapers have recently published information on a classified program of government data mining, designed to ferret out transfers of funds to suspected terrorist organizations. Should the publishing of such information be punished as a criminal violation?
In a provocative little volume, Richard Posner, America’s leading legal scholar, examines the relationship between national security and the Constitution and determines the conduct of the Bush administration to be perfectly appropriate, even if the letter of the Constitution may have been violated. Borrowing from a famous statement made by Supreme Court Justice Robert Jackson in 1949, Posner observes that the Constitution is not a “suicide pact” and that, if a chief executive believes that the nation is being threatened, the Constitution should not be allowed to stand in the way of appropriate measures to defend her. Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit, where he has gained a reputation for being as interested in arriving at judicial results that reach practical conclusions as he is in following precedent—and perhaps more interested.
As a law professor at the University of Chicago, Posner was one of the founders of a school of pragmatic legal analysis known as “law and economics,” probably the most important legal intellectual development in the late 20th century. Indeed, much, if not most, of the best legal scholarship in the last two decades has been devoted to the discussion of Posner and his ideas. Richard Posner believes that the purpose of law is to increase the national welfare (in his early days, he described this as the pursuit of “efficiency” in the law), and he is today what might be described as the country’s leading legal pragmatist. Although federal judges and American law professors have seldom achieved fame for their firm grasp of practical realities, Posner has actually accomplished this feat. In a remarkable volume on the Clinton impeachment, he concluded that both those who sought to remove the President on the grounds that he had committed perjury, tampered with witnesses, and lied to a grand jury and those who sought to contest his removal by arguing that Clinton had done nothing more than unwisely engage in a tryst with a nubile intern were right. The Clinton imbroglio, he argued, was essentially the result of an insufficiently sensitive Supreme Court that never should have allowed a lawsuit against a sitting President (Paula Jones’ sexual-harassment case) to go forward until he was out of office. Had the Jones suit never been brought, Clinton, of course, would never have been tempted to lie about his dalliance with Monica Lewinsky, and the country would have been spared the national embarrassment, distraction, and litigation that ensued. Posner also published one of the best analyses of the Bush-Gore election controversy of 2000, pragmatically concluding that, this time, the Supreme Court (which handed Bush the election) was correct in doing so, in order to avoid national and international chaos. Posner, sitting a rung below the justices, appears to feel equally comfortable in praising and criticizing the Supreme Court. Were he appointed to the Court, his intellectual independence might well be compromised. On the other hand, his firm grasp on reality might have enabled him to save the Court from at least some of its recent mistakes. Take, for example, its decision in Hamdan v. Rumsfeld (2006), where the Court ruled five to three (Chief Justice Roberts recused himself, as he had previously ruled on the case from a lower court) that the military commissions established by President Bush to conduct criminal trials of alleged alien terrorists violated the Constitution because Congress had not previously acted to authorize them, and because Common Article 3 of the Geneva Conventions applies to Al Qaeda detainees. The latter provides that trials of offenders who were not participants in an “international conflict” must take place before a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” But President Bush’s military tribunals were ad hoc entities, so, according to the five majority justices, they failed to meet the requirements of Article 3. Hamdan came down two years after the Court’s opinion in Hamdi v. Rumsfeld (2004), in which a similar majority had ruled that terrorists with American citizenship captured on foreign soil are entitled to procedural rights guaranteed by the U.S. Constitution.
Hamdan, Prof. Diane Orentlicher of American University has argued, demonstrated that “our constitutional system of law remains vibrant even when it comes to non-Americans captured in a theater of war.” Hamdan came down too late to be considered in Not a Suicide Pact, but Posner would doubtless have been more skeptical in his response to it. It is noteworthy that a congressional statute—passed before Hamdan was decided—expressly denied suspected terrorists such as Salim Ahmed Hamdan jurisdiction to bring such lawsuits in the federal courts; as Justices Scalia, Thomas, and Alito noted in dissent, the Court was blatantly wrong to ignore this statute, despite the fact that the U.S. Constitution expressly grants Congress the right to suspend lawsuits over such detention. Justice Thomas even went so far as to suggest, correctly, that Hamdan, as an illegal combatant, was not protected by the Geneva Conventions. (Article 3 was written to cover civil wars, not international terrorism.) Justice Thomas added that, even if Article 3 applied, President Bush’s ad hoc military tribunals would have met the requirements of the Geneva Conventions and that the President already had authority to set up those special tribunals because of previous congressional action. Posner shows some sympathy for according detainees habeas corpus (the right to sue to force the government to prove a legal basis for holding a prisoner), but only as consistent with the governing statutes, making it likely that he would have sided with Scalia, Thomas, and Alito. Indeed, even if such protection were mandated by our Constitution and laws, “modern terrorism is so dangerous, and so unlike ordinary crime, that the ordinary processes of criminal justice must be modified. The terrorist problem is sui generis; so should be the solution to it.” Posner adds, quoting Prof. Martin Sheffer, “during an emergency the law of necessity supersedes the law of the Constitution.”
If it is true that the jihadists are like no other enemy we have faced, perhaps at least certain constitutional protections should not be invoked in their favor. Posner argues that, “Like any brittle thing, a constitution that will not bend will break” and that a rigid insistence on reading that document, as exhibited by “civil libertarians” such as the ACLU, as an impediment to efforts to frustrate the jihadists, especially through the gathering of intelligence, is “excessive” and “irresponsible.” Posner clearly favors the criminal prosecution of journalists who publish classified information, such as the government’s data-mining activities. As he puts it,
I argue that an American version of the British Official Secrets Act may be needed in order to seal leaks of classified material that are harmful to national security or that invade personal privacy, and such a law would not violate the Constitution.
Posner does have confidence in the media to expose governmental wrongdoers, as well as in legislation protecting whistle-blowers against retaliation and laws punishing government personnel for misconduct, but he believes that government officials—the President, in particular—must be given the tools necessary for conducting national defense. In weighing the constitutional right to privacy against the safety of the nation, he would tip the balance toward national security and away from individual privacy.
Posner’s model for the kind of balancing he suggests is Lincoln’s suspension of the Constitution during the Civil War, an act that some find unnecessary and inappropriate. Indeed, another legal maxim, one that is less frequently quoted than Justice Jackson’s, holds: “Fiat Justicia, Ruat Coelum.” (“Let justice be done, though the heavens fall.”) An argument for suspending the rule of law in order to save the Constitution—which is essentially Posner’s argument—obviously is willing to contemplate the risk of tyranny. One might go further to suggest that another utterance of Justice Jackson (used by Posner as an opening quote) might be understood to imply that that risk is unacceptable: “The choice is not between order and liberty. It is between liberty with order and anarchy without either.” When the alternative really is mass destruction, perhaps Posner gets the balance right. When the somewhat misguided “civil libertarian” majority of the U.S. Supreme Court clearly misconstrues international agreements such as the Geneva Conventions, as they did in Hamdan, there is cause for alarm. Those conventions, as San Diego Union-Tribune writer Robert J. Caldwell has recently observed,
were clearly intended to set rules for conflicts between nation states, not to extend protected prisoner-of-war status to international terrorists who deliberately murder civilians and represent no government or nation.
Where the Court itself departs from the rule of law, it may indeed be necessary to save the country from the Court—which is exactly what Richard Posner is trying to do.
[Not a Suicide Pact: The Constitution in a Time of National Emergency, by Richard A. Posner (New York: Oxford University Press) 171 pp., $18.95]