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In 1948 an Air Force B-29 bomber exploded over Georgia, killing nine of the military crew members and civilian contractors aboard. When the contractors’ wives tried to sue for negligence, the government asserted it could not release the Air Force’s report on the accident. Sorry, the government’s lawyers said, that would require revealing sensitive national security secrets. The Supreme Court bought the argument in the resulting case, United States v. Reynolds, without ever looking at the accident report, thus establishing the state-secrets privilege. More than 50 years after that case was decided, the daughter of one of the contractors killed in the crash discovered the accident report while she was browsing the Internet. The report was full of glaring government negligence — but few secrets. Louis Fisher, a senior scholar at the Library of Congress’ Law Library, lays out the case in his new book, In the Name of National Security, as a cautionary tale of why the judiciary shouldn’t be too quick to defer to the executive branch during national emergencies. On the other side of the argument is Richard Posner, the prolific author and judge on the U.S. Court of Appeals for the 7th Circuit. He comes to a very different conclusion in his new book, Not a Suicide Pact. Posner argues that judges should largely defer to the elected branches, which, he suggests, are justified in constricting civil liberties during the fight against terrorism when the benefits outweigh the costs. He then applies his own balancing test to assess the constitutionality of the Bush administration’s most controversial exercises of executive power. Posner doesn’t go as far as the administration’s biggest legal cheerleaders, such as John Yoo, whom he criticizes for interpreting Article II as giving the president a blank check. Nonetheless, Posner concludes that almost all of the administration’s most controversial tactics — including coercive interrogations, indefinite detentions of enemy combatants, and the National Security Agency’s domestic surveillance — pass constitutional muster. He argues that the Constitution allows even more. The First Amendment’s free-speech protections may not shield imams within the United States who endorse violence, Posner believes. And he suggests that the Fourth Amendment would not bar the NSA from intercepting all domestic electronic communications, provided they’re used only for terrorism investigations. WHAT WOULD THE MAHATMA THINK? Posner won’t disappoint readers who have come to expect rather unusual ideas in his dozens of previous books expounding on everything from economics to sex. He even goes as far as to suggest that a president authorizing the torture of a terror suspect could be engaging in an act of civil disobedience. That’s probably not what Mahatma Gandhi had in mind. But to Posner it is the president, with oversight from Congress, who is best equipped to make these judgments. His compatriots on the federal bench, he says, should exhibit “judicial modesty” and step aside. “To an extent not acknowledged by civil libertarians, the Court can sit back and let the other branches duke it out,” Posner writes. Sitting in his chambers 27 floors above downtown Chicago, he blithely concludes that the Republican Congress has been an effective check on the president, rather than a rubber stamp. But the view from the Capitol, where Fisher works for the CRS, is quite different. The recent revolt led by Republican Sens. Lindsey Graham, John McCain, and John Warner over the president’s new plan for interrogating and prosecuting terrorist detainees stands out because so many of their GOP colleagues have proved happy to roll over. That kind of reflexive deference to the executive branch worries Fisher. He criticizes the Supreme Court for swallowing what he considers a “jerry-built” state-secrets privilege without question. “In doing so, it resorted to a jumbled reasoning process that greatly broadened executive power in the fields of foreign and military affairs,” Fisher writes. Fisher’s book is far from perfect. He comes off as an overzealous prosecutor set on condemning both the government he believes ginned up the state-secrets privilege to hide its negligence and the Supreme Court that bought the argument. Fisher also manages to strip away much of the drama of the Reynolds case, including an effort 50 years after the fact to get the Supreme Court to reverse itself after the accident report was declassified. But his timing couldn’t be better. The Bush administration has invoked the state-secrets privilege with great frequency, most prominently to quash lawsuits related to the NSA surveillance program. And Fisher, a civil servant working on Capitol Hill, proves to have a far better grasp than the famous federal judge in Chicago about the pitfalls of leaving it to the president to make the legal rules for the war on terror.
Seth Stern is a legal reporter for Congressional Quarterly .

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