Judge Posner’s Not a Suicide Pact

posner-book1.jpgI’ve just finished reading Judge Richard Posner’s new book, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford, 2006). The book is a slender volume, with a remarkable feat for a law professor — absolutely no footnotes or endnotes or citations of any sort save a short bibliography at the end.

Before I began reading Posner’s book, I was surprised that some reviewers, such as Dahlia Lithwick, praised the book as measured and balanced:

In his new book, “Not a Suicide Pact: The Constitution in a Time of National Emergency,” Posner approaches the wartime civil liberties problem in precisely the manner the Bush administration will not: with a dispassionate weighing of what is won against what is forsaken each time the government engages in data mining, indefinite detentions or the suppression of free speech.

I do not share Lithwick’s enthusiasm. Posner’s book struck me as a very broad defense of the Bush Administration’s policies (with a few exceptions) and as advocating a balancing between civil liberties and national security in which national security will nearly always win out. Posner is masterful in his rhetoric, though, and manages to sound judicious and measured even though the implications of what he is arguing often are rather extreme.

Posner begins by arguing for a “living Constitution,” which means that the Constitution should not be rigidly interpreted but should evolve with the times. In this respect, he agrees with Justice Brennan and other liberal jurists. Some reviewers, such as Michiko Kakutani of the New York Times attacked Posner’s living Constitution argument:

This willingness to bend the Constitution reflects Judge Posner’s archly pragmatic approach to the law and his penchant for eschewing larger principles in favor of utilitarian, cost-benefit analysis. Efficiency, market dynamics and short-term consequences are what concern Judge Posner, not enduring values or legal precedents.

One result is a depressing relativism in which there are no higher ideals and no absolute rights worth protecting. . . .

I agree with Posner on the point about the living Constitution. Posner’s point is that like it or not, the Constitution is already a living Constitution: “So much of the constitutional text is vague or obsolete that a great deal of judicial patchwork is required for the Constitution to remain serviceable more than two centuries after it was written.” (p. 19). The problem with Posner’s arguments, however, is not in his embracing of pragmatism, balancing, and an evolving Constitution but in the way he goes about his balancing.

Posner argues for judicial restraint because “when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head.” (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.

Posner argues that the threat of terrorism is very grave: “The research that I have been conducting for the past several years on catastrophic risks, international terrorism, and national security intelligence has persuaded me that we live in a time of grave and increasing danger, comparable to what the nation faced at the outset of World War II.” (p. 3). Really? As I’ve argued before, perhaps the dangers of terrorism are being weighed too heavily. Regardless of whether I’m wrong or right, Posner does little to question and analyze the dangers of terrorism, which he largely assumes.

Posner makes a straw man out of civil libertarians, who he claims “are reluctant to acknowledge that national emergencies in general, or the threat of modern terrorism in particular, justify any curtailment of the civil liberties that were accepted on the eve of the emergency.” (p. 41). Why not take on the more nuanced civil libertarians, who don’t have such an absolutist view? Most civil libertarians are not absolutists but are arguing that certain programs that curtail civil liberties do not provide sufficient benefits in addressing the risk of terrorism (which they don’t assess at such a grave level as Posner does) to justify the costs. They are just engaging in a different cost-benefit analysis, but Posner seems to paint anybody who doesn’t engage in his particular cost-benefit analysis as unpragmatic and absolutist.

Throughout the book, Posner’s cost-benefit analysis always seems to favor the curtailment of rights. He does try to moderate his stances by articulating some limits, but these are minimal at best. Thus, he justifies detention of enemy combatants but throws the civil libertarians a bone by arguing that there should be judicial review of detentions. (p. 60-61). But he then says that a “heavy burden” can be placed “on the detainee to prove that he is not a terrorist.” (p. 61) .

At one point, Posner takes issue with John Yoo’s argument that “Article II of the Constitution authorizes [the President] to conduct war in any manner he sees fit; we are at war with al-Qaeda; therefore it is the sole prerogative of the president to decide what if any rights to accord to persons captured in this war.” (p. 67). At least Posner rejects the most extreme arguments, but these are low-hanging fruit. In all other respects, Posner’s purportedly more measured approach ultimately justifies nearly every measure the Bush Administration has taken. He just does it in a way that sounds more judicious, but the result is largely the same.

Another limitation Posner advances is that his special departures from rights “are warranted only for terrorism that potentially threatens national security. ‘Ecoterrorism’ and “animal rights terrorism’ do not. These are serious crimes, but they inflict only property damage, usually modest, and are orders of magnitude less menacing that Islamist terrorism.” (p. 63). What exactly is “national security”? What is “terrorism”? Posner appears to recognize the fuzziness of these terms when he says that “a biological Unabomber could be a greater menace than al-Qaeda.” (p. 63) But he never really provides a convincing clear definition of when his special rules should apply. As a result, he fails to provide an answer to the slippery slope problem — if we have special rules for terrorism, why not also apply these rules to ordinary murder and other crimes? After all, at least based on past statistics, the chances of being killed via ordinary crime are much higher than being killed from terrorism.

Later on, Posner argues that in cases of “special” national security surveillance, if an intelligence officer “discovers that one of the parties to the communication seems to be planning a murder, though a murder having nothing to do with any terrorist plot” then she should “refrain from notifying the authorities.” (p. 98-99). This is because, Posner says, “[t]here is much wild talk in private conversations.” (p. 99). Yet “wild talk” could just as readily apply to terrorism as to murder. And in many cases, it would be relatively easy to determine whether the talk were serious planning or just wild talk. Posner then notes: “But if the evidence is of a crime related to national security, then sharing it with law enforcement authorities should be (and is) required.” (P. 99). He notes that there may be other exceptions: “Serial killing is not terrorism, but it is such a serious crime that clues to it picked up in national security surveillance should be communicated to law enforcement officials.” (p. 99). So the test now becomes what is “serious” crime and what isn’t, which makes the standard sufficiently muddy to provide little guidance for when intelligence officers can share their intelligence. And he said earlier that ecoterrorism is a “serious” crime yet not worthy of being subject to the special rules (p. 63), so it remains quite unclear precisely what standard Posner seems to have in mind.

Rarely does Posner spend much time exploring the values of rights. My impression, after reading his book, was that rights for Posner were not that important, a luxury at best. Posner does not analyze the benefits of rights with nearly a fraction of the vigor by which he extols the benefits of national security measures. Thus, he discounts the harms of surveillance by arguing that

All manner of e-mail and other Internet “conversations” are monitored and recorded by employers and vendors. Probably most people would prefer to have their communications monitored by an agency interested only in national security than by their employers. . . . It is easy to exaggerate the private as well as social harm from unobtrusive surveillance.” (p.90).

Well, if Posner says so, it must be true. Little attempt is made to try to understand and articulate the harms of surveillance. Posner goes on to justify the NSA surveillance program because “such surveillance might cause our foreign terrorist enemies to abandon or greatly curtail their use of telephone, e-mail, and other means of communicating electronically with people in the United States who may be members of terrorist sleeper cells.” (p. 95). As I read through this example and others of Posner’s balancing, I kept wondering: If Posner is right that the threat of terrorism is extremely grave, then when would civil liberties ever win out over national security protections?

Posner even goes on to propose more extreme surveillance programs than the Bush Administration is currently engaging in: “I believe that the government could, in the present emergency, intercept all electronic communications inside or outside the United States, of citizens as well as of foreigners, without being deemed to violate the Fourth Amendment, provided that computers were used to winnow the gathered data, blocking human inspection of intercepted communications that contained no clues to terrorist activity.” (p. 99-100). Wow! There really doesn’t appear to be much of a limit at all. Terrorism is so grave in Posner’s book that nearly any measure to protect against it would be justified. Moreover, how are computers to do this winnowing? Putting aside the issue of what constitutes “terrorism” and perhaps other “serious” crimes, is there really a way to isolate only communications regarding terrorism?

Moreover, in Posner’s arguments, as in the arguments of many on the national security side of the balance, there seems to be the view that rights are merely bans and restrictions on surveillance, but this is not how rights currently work. The Fourth Amendment rarely bans surveillance; it requires judicial oversight of such surveillance and it requires that the government make an attempt to justify its measures. So the balance isn’t between no surveillance versus surveillance — it is more accurately stated as measuring the extent to which certain forms of judicial oversight and other procedural requirements reduce the effectiveness of the surveillance. The reduction in effectiveness is what should be weighed against civil liberties, not the full value of the surveillance.

At other points in the book, Posner begs the hard questions. He notes that government agencies frequently overclassify information, creating “a culture of secrecy that inhibits the production and flow of information to which the public should be entitled.” (p. 107). He argues that abuses from data mining can be curtailed because of “the growth of a culture of leaking and whistleblowing” which “make American government a fishbowl.” (p. 98). But then he argues that we must have stronger laws against leakers and that “government must be able to punish the media when they knowingly publish [classified information].” (p. 106). Posner gives us no idea how all this fits together.

In short, I found the book to be quite frustrating at times. Posner writes clearly and well as always, and he certainly knows how to be engaging and interesting. That’s a lot, but it is far from enough.

NOTE: This isn’t the first time I’ve critiqued Posner on these issues. For those interested in reading more of my critiques of Posner, I take on Posner’s views on security and legal pragmatism here, his views on Melville’s Billy Budd and security here, his views on judicial restraint here, and his call for extensive surveillance here.

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8 Responses

  1. KipEsquire says:

    Posner lost me as a fan a while back when he insisted that data mining by the government implicated no civil liberties because “a computer can’t invade your privacy.”

  2. not sure i follow says:

    You say:

    “Posner argues for judicial restraint because ‘when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head.’ (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.”

    So, are you arguing that when in doubt over the actual or likely consequences of a measure we should leave it to Article III judges? Why? They strike me as having less practical knowledge, having fewer means to predict policy outcomes, having less accountability for their mistakes, and having less ability to promplty correct their mistakes.

  3. dvorak says:

    If Posner is right that the threat of terrorism is extremely grave, then when would civil liberties ever win out over national security protections?

    To modify the old test: You know a terrorist nuclear bomb will detonate in 24 hours. What civil liberties do you think should trump national security?

  4. Mike says:

    Not to sound flip but….

    Yawn. Posner is a results-orientated hack. Paul Gowder and I have discussed/demonstrated this ad nauseum.

    Why do people still take Posner seriously? Because he’s a supposed genuis? Actually, he’s not even close. He just writes a lot. And people assume that because he writes so much, he must know a lot. And only a genuis could know so much!

    Of course, when people with expertise in the subject matter Posner writes about examine his writings, they see a typically Posnerian shallowness.

  5. Kenny says:

    Posner argues for judicial restraint because “when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head.” (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.

    But it is self-evident that the judicial branch is the branch of government that is least subject to checks and balances, and in particular is least answerable to the public for malpractice in its behavior or folly in its policies. A President who, in the opinion of the People, gets the balance wrong, is subject to the consequences of their displeasure as expressed in the ballot box, as is his party. A Supreme Court Justice who flagrantly imposes his own personal political agenda upon the entire nation by judicial fiat, is subject to…absolutely no negative consequence at all other than having people whose opinion he despises, think badly of him.

    That’s just one reason to value judicial restraint and judicial deference, generally speaking, to the directly representative branches of government.

    I have no idea whether you have spent a lot of time on your blog arguing about the importance of “checks and balances” and complaining that the President is too free to behave as he chooses without being controlled by other branches of government. But nobody who supports Supreme-Court level judicial activism — that is, nobody who objects to the principle Posner lays out in the passage you quote — can really pretend, in the presence of intelligent people and the obvious absence of legislative and executive control over the abuse of the Supreme Court’s powers, to believe in the importance of checks and balances per se. Whenever a supporter of judicial activism starts talking about checks and balances, the rest of us know perfectly well that he means “checks and balances on the behavior of people to whose political agendas I personally object.” Therefore I hope, since you here seem to be objecting to the idea that judges should defer in general to the two branches that are directly accountable to the voting citizens, that you have not complained in the past about inadequate checks and balances on the President’s behavior.

  6. Kenny says:

    And a second, and even more important, reason:

    When the Republican or Democratic party (in either the legislative or executive branches) makes what a majority of Americans considers to be an egregious error, it takes one election cycle to reverse the policy. But let a 5-4 majority of the Supreme Court, over bitter dissent from the one-vote minority, announce, “Thus saith the Constitution,” and henceforth even if 65% of the American people — an overwhelmingly majority — are absolutely convinced that the five activists have misinterpreted the Constitution, it will be practically impossible for the mistake to be corrected, and utterly impossible for it to be corrected quickly. If it is corrected, it will be either by amendment to the Constitution — for which you will require, in effect, a supermajority of Americans or else a majority of Americans very evenly distributed throughout the country — or else by the dying off of the irresponsible five and their replacement with other judges more in tune with the People. And the latter process implies that, if the People wish the ruling changed, then they will have to set aside whatever other policy concerns they might have in order to keep electing Presidents with an eye to how they will replace any Supremes who might choose to retire during their term. This is exacerbated even further by the fact that an extremist Supreme has the timing of his own retirement entirely under his own control (barring his being smitten down by God) and therefore can deliberately postpone or hasten his retirement in order to maximize the likelihood that the President in charge of selecting his replacement will be a President who shares the retiring Supreme’s agenda — and who will therefore nominate a “suitable” replacement.

    On difficult or obscure questions, the genius of the American system is that many different solutions may be tried in different states and jurisdictions, or at different times as different parties gain and lose control of the elective branches, and in this process of experimentation the American people are able to work out a practical and creative solution. But this whole give-and-take process — the very essense of American democracy — is short-circuited the moment the Supreme Court decides to jump in and decree that The Constitution Has Spoken — whether it actually has or not.

    Furthermore, decades of activism by Democrat-dominated Supreme Courts have now made it clear to everybody in politics that the single most important branch of government, the one that must be controlled by one’s own party because it absolutely is not controlled by the American people, is SCOTUS. Have you not noticed that suddenly the nominees for Supreme Court are no longer men and women who are near the end of long and distinguished careers, but are instead relatively young bright lights who, if confirmed, can then be counted on (at least so the nominating President always hopes) to defend his agenda literally for decades to come? John Roberts will, barring major health problems, be Chief Justice of SCOTUS for probably the next twenty or thirty years, during all of which time neither of the other branches of government will have the slightest ability to reign in whatever flights of dubious sophistry he might choose to engage in. And that is precisely why Bush wanted him: Bush fully intends that five Presidential terms from now “his” Justices will still be carrying on the Bush “legacy.” Thus judicial activism not only greatly increases the chances that the Constitution will be misrepresented in ways the voting public would never willingly countenance, and not only allows practically irreversible national policy decisions to be made by persons entirely unimpeded by checks and balances and accountability to a voting public, but it even taints and ultimately perverts the very process of nomination and confirmation that determines the long-term character of SCOTUS itself.

    Supreme Court justices are so manifestly free from accountability, and their mistakes (as defined by the will and judgment of the People) are so manifestly difficult to reverse (especially in comparison to mistakes made by the other two branches) that it is very difficult to imagine a rational person arguing against the principle of extreme judicial restraint unless two things are true about the supporter of judicial activism:

    1. He himself supports a political agenda that is not popular among the people as a whole and therefore that is unlikely ever to be put into practice by either of the two branches that have to answer directly to voters. A person who supports the extreme pro-abortion position of Roe, and a person who supports an equally extreme anti-abortion position, would each be tempted to find judges willing to say that the Constitution demands the imposition of his extreme agenda, because the American people if left to its own desires would almost certainly settle on a compromise position similar to those which prevail in Europe, which position would be unsatisfactory to those who (such as Justice Blackmun) support extreme positions on either side.

    2. He is confident that the judicial branch, on the whole, is dominated by people who share his agenda and will rule the “right” way — that is, in favor of the policies that he supports but that the majority of Americans do not. Thus Democrats who were perfectly happy to see sweeping innovations by the Courts of, for example, Brown v. Board of Education vintage, have suddenly had a religious conversion to the divine inviolability of stare decisis at the mere thought that the Supreme Court might someday have a majority of Republican judges who were willing to impose Republican political agendas. This dramatic change in attitude, which amounts to a demand that Republicans not be activists should they gain control of SCOTUS from people who have spent decades celebrating judicial activism, is entirely due to a dramatic drop in Democrats’ confidence that they will always control the Supreme Court and will therefore always be able to perpetrate, rather than be targeted by, SCOTUS activism.

  7. Karole says:

    I agree with Kenny. The argument for judicial restraint is strongest I would have thought in the field of national security. I am not an American, but the peculiarly powerful status of your Supreme Court, as pointed to by Kenny, just makes the point clearer.

  8. Karole says:

    By the way, this is a great blog. I came across it looking for reviews of Judge Posner’s new book, but I’ll be sure to add a link to it on my own blog and return regularly.