The Constitution Bends in an Emergency

Torture in interrogation, open-ended detentions, sifting through domestic phone records, profiling � all the unfortunate, but arguably necessary, byproducts of keeping a nation safe from determined fanatics � are examined in "Not a Suicide Pact: The Constitution in a Time of National Emergency."

The author, Richard A. Posner, is also a judge of the U.S. Court of Appeals for the Seventh Circuit in Chicago and a lecturer at the University of Chicago Law School. He has the legal community buzzing with his argument that restrictions of civil liberties are warranted whenever the benefit to be derived from those restrictions in terms of increased security outweigh the limited rights cost to society.

Within his remarkable latest tome, Posner applies his controversial balancing test to the ongoing debate over how much force the government can employ against terrorists and how much snooping it can engage in � without doing more than bend what he perceives as a necessarily malleable Constitution.

He frames his thoughts around the question of whether the U.S. is at war with terrorists or whether they are simply a particularly noxious form of political criminal.

"I argue that the terrorist threat is �sui generis' � that it fits the legal category neither of �war' nor of �crime,' Posner writes. "It requires a tailored regime, one that gives terrorists suspects fewer constitutional rights that people suspected of ordinary crimes, though not no rights."

One of his first conclusions, he describes, was recognition of "the danger in interpreting the Constitution in a way that it really makes it difficult to respond to novel threats."

Looking to the long history of the "flexible interpretation" of the nation's most hallowed document, he concludes that if U.S. judges were more knowledgeable about the terrorist threat that they "would see how the Constitution can be interpreted in a way that protects civil liberties adequately but does cripple our counter-terrorist effort."

Posner notes that the U.S. has by tradition a generalist judiciary � nothing truly resembling an anti-terrorist court the way that the French have. "[U.S.] judges at least think they know a lot about civil liberty. They don't know anything about terrorism," he says.

"[W]e have, I think, about 30,000 murders a year, and we would like maybe to reduce that number slightly," Posner says. "We want to prevent it from growing. That is the function of our current justice system. But we can't take the same approach to terrorists and say, �Well, as long as we don't have more than 5,000 people killed a year in terrorism, it's just a spike in our murder rate. We will use the same old means.' That is just wrong."

Under the traditional system in this country, Posner says, you wait for the crime to occur, and then you arrest the person � and the fact that you have caught someone has a deterrent affect on other people, as well as incapacitating the person arrested.

Posner posits that such a system is "feeble" as the strategy against terrorists, who are by nature extremely difficult to deter and in many cases suicidal. "Incapacitation is not very effective because there is this huge reserve army as potential terrorist," he opines.

There is no more sticky area than the detainees held by the U.S. Subject to certain qualifications, Posner suggests that a terrorist-suspect-detainee should have the right to insist that a regular court make the initial determination whether he can be held as a likely terrorist. If the court determines that he is, he can then be handed over to a military tribunal for trial as an unlawful combatant.

As to "torture," which can be defined somewhat arbitrarily, Posner also favors a refreshingly common-sense approach.

"It is probably better to recognize the discretion of public officials to disregard in extreme cases the prohibition against torture, or the discretion of the president to suspend habeas corpus in such case though not authorized by the Constitution to do so, than to try to codify the instances in which such conduct is allowed," Posner writes in "Suicide."

And those nettlesome phone-intercepts also fall under the Posner umbrella of common-sense balancing. He writes: "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 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."

In the end, notes Judge Posner, our judges when confronted with civil liberties issues involving terrorism, are much more likely to give way to the civil liberties concerns because that is what they know about � rather than the terrorist concerns which they don't know about.

There's no truly simple answer offered by Posner � or anyone � as the nation grapples with the unique new circumstances of existing in a world populated with fanatics who pay no attention whatever to the most fundamental rules of civilized people.

Somehow, a civilized nation with a custom of civil rights must adapt.

Unfortunately, says Posner, our justice system and institutions are ill-designed to help fight the good fight.

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