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Judge Richard A. Posner’s short new book, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford University Press 2006), is a frightening justification for taking away civil liberties, but it does little to show that doing so will make anyone safer. The book is largely an apology for the Bush administration’s record since Sept. 11, 2001. Posner says that its actions, except for denying habeas corpus to those detained as enemy combatants, do not violate the U.S. Constitution, and those who criticize what has been done are just reacting out of a visceral dislike of President Bush. Indeed, Posner supports measures that go far beyond what the Bush administration has done, such as government interception of all electronic communications, including those between Americans, without a warrant. He also argues for legislation to impose prior restraints on the press to keep it from publishing classified information and contends that greater restrictions on extremist speech would be permissible. He argues for granting immunity from civil liability for all government officials who engage in illegal activities that violate rights based on compelling necessities. In short, the book, as the title implies, argues that safety from terrorism justifies significant deprivations of liberties. The book’s crucial flaw is its failure to show that it is necessary to compromise these basic freedoms in order to successfully fight the terrorist threat. Posner is certainly correct that there is a serious risk posed by terrorists who have the capacity and the desire to create devastating harms with terrible losses of lives. He is right, too, that traditional law enforcement approaches won’t work. After Sept. 11, law enforcement must act to prevent terrorist attacks from ever happening. Posner is also correct that, at times, some rights may need to be compromised for the sake of security. He repeatedly asserts that there are those, and he refers to the American Civil Liberties Union, who oppose any curtailment of civil liberties. But here he is attacking a straw man; no one takes such an absolutist position. Even the staunchest civil libertarians accept the greater screening of luggage and passengers flying on planes that has occurred since Sept. 11, even though it means a loss of privacy. The crucial question must be whether curtailments of liberty and constitutional principles are needed in order to achieve safety. Posner’s approach is profoundly ahistorical. Nowhere does he acknowledge that throughout American history the response to crises often has been repression, and in hindsight we realize that we were not made any safer from the loss of freedom. Laws adopted during World War I led to the long imprisonment of many people for criticizing that war, but didn’t make the country any safer. During World War II, 110,000 Japanese-Americans were interned even though not one was ever accused, indicted or convicted of any crime against national security. Unlike Posner, my sense is that since Sept. 11, this unfortunate history is repeating itself. Posner also never acknowledges the extent to which the Bush administration has sought to undermine basic principles of checks and balances. It has claimed, for example, the ability to detain American citizens apprehended in the United States as enemy combatants without needing to comply with the Fourth, Fifth and Sixth amendments. It has asserted the power to ignore statutes and treaties, such as those prohibiting torture. It has asserted that it can engage in warrantless electronic surveillance without meeting the requirements of the Fourth Amendment and federal statutes. The Constitution, though, is based on the simple premise that two branches of government should have to approve almost any major government action, whether it is a search or an arrest or enacting a law or imprisoning a person. Posner never adequately explains why this model cannot continue to work during the war on terrorism. Posner takes his inspiration from the words of Justice Robert Jackson, that the Constitution is not a suicide pact. While that is correct, he would have been wise to also recall the words of Justice Louis Brandeis: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Brandeis never knew George W. Bush, John Ashcroft or Donald Rumsfeld, but if he had, he could not have chosen a more apt description. Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science at Duke University.

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