Not a Suicide Pact: the Constitution in a Time of National Emergency

Not a Suicide Pact: The Constitution in a Time of National Emergency Richard A. Posner OXFORD UNIVERSITY PRESS not a suicide pact i n a l i e n a b l e r i g h t s s e r i e s . series editor Geoffrey R. Stone Lee C. Bollinger Michael W. McConnell President Judge Columbia University U.S. Court of Appeals for the Tenth Circuit Alan M. Dershowitz Felix Frankfurter Professor of Law Martha C. Nussbaum Harvard Law School Ernst Freund Distinguished Service Professor, Philosophy, Law, Divinity, Richard A. Epstein South Asian Studies James Parker Hall The University of Chicago Distinguished Service Professor University of Chicago Law School Richard A. Posner Judge Pamela S. Karlan U.S. Court of Appeals for Kenneth and Harle Montgomery the Seventh Circuit Professor of Public Interest Law Stanford Law School Jack N. Rakove William Robertson Coe Professor of Alexander Keyssar History and American Studies Matthew W. Stirling, Jr. Professor of Stanford University History and Social Policy JFK School of Government, Geoffrey R. Stone Harvard University Harry Kalven, Jr. Distinguished Service Professor Michael J. Klarman University of Chicago Law School James Monroe Distinguished Professor of Law and History Kathleen M. Sullivan University of Virginia Stanley Morrison Professor of Law and Former Dean Larry D. Kramer Stanford Law School Richard E. Lang Professor of Law and Dean Laurence H. Tribe Stanford Law School Carl M. Loeb University Professor of Law Lawrence Lessig Harvard Law School C. Wendell and Edith M. Carlsmith Professor of Law Mark Tushnet Stanford Law School William Nelson Cromwell Professor of Law Harvard Law School Not a Suicide Pact . the constitution in a time of national emergency Richard A. Posner 2006 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2006 by Oxford University Press Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Posner, Richard A. Not a suicide pact : the constitution in a time of national emergency / by Richard A. Posner. p. cm. Includes index. ISBN-13: 978-0-19-530427-5 (cloth) ISBN-10: 0-19-530427-6 (cloth) 1. Civil rights—United States. 2. National security—Law and legislation—United States. I. Title. KF4749.P67 2006 342.7308'5—dc22 2006005345 1 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. —Justice Robert Jackson, dissenting in Terminiello v. City of Chicago (1949) . While the Constitution protects against invasions of individual rights, it is not a suicide pact. —Justice Arthur Goldberg, for the Court, in Kennedy v. Mendoza-Martinez (1963) . As Justice Jackson put it in a now often-quoted remark, we cannot allow our Constitution and our shared sense of decency to become a suicide pact. —Professor Ronald Dworkin, in the New York Review of Books (2002) This page intentionally left blank . Contents Editors’ Note ix Introduction 1 chapter one How Are Constitutional Rights Created? 17 chapter two How Does National Security Shape Constitutional Rights? 31 chapter three Rights Against Detention 53 contents chapter four Rights Against Brutal Interrogation, and Against Searches and Seizures 77 chapter five The Right of Free Speech, with a Comment on Profiling 105 chapter six Rights of Privacy 127 Conclusion 147 Further Readings 159 Index 165 . Editors’ Note We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalien- able Rights. —The Declaration of Independence This volume is the first in a new series on Inalienable Rights. Each book illuminates why a right or set of rights is in the Constitution (or has remained outside it), and then explores the controversies the right has provoked. Rights invite discussion: What is a constitutional right? What are the counterbalancing duties? Rights are often inde- terminate and under pressure from a variety of sources. Authors in this series have their own points of view, and in these volumes they will declare and defend them. Civic debate is at the heart of the American political process. The Inalienable Rights series is designed to challenge readers to question their own assumptions about these foundational canons of our society. Richard Posner’s Not a Suicide Pact: The Constitution in a Time of Na- tional Emergency addresses a key dilemma as we struggle to maintain editors’ note our equilibrium in an era of intense security concerns and growing threats to long-held liberties. When terrorists can kill tens of thou- sands by spraying aerosolized anthrax or detonating dirty bombs, how should we properly balance our interest in personal liberty with our interest in public safety? What are the roles of the executive, the Congress, and the judiciary when a crisis is at hand? To what extent should civil liberties vary with threat levels? Richard Posner here dissects the constitutional issues raised by such controversial policies as detention, torture, data mining, and the interception of phone calls and other electronic communications. He argues that rights should be modified according to circumstance and that we must find a pragmatic balance between personal liberty and community safety. Such balancing cannot easily be translated into fixed rules, or even legislation. Sometimes, as with Lincoln’s decision to suspend habeas corpus during the Civil War, the immedi- ate situation must take precedence over rules. Posner contends that if we do not allow the Constitution to bend, it may break. This is a controversial claim, and it is therefore in the spirit of this series. In a vibrant democracy, controversial viewpoints stimu- late critical engagement. The framers of the Constitution could not have envisioned the cell phone, the wiretap, or the dirty bomb, but they were not naïve about societal and technological change. They hoped that the democratic processes they had created would enable enlightened citizens and their representatives to amend or adapt traditional policies as necessary after suitable debate. The Bill of Rights itself was controversial and almost died in Con- gress. James Madison championed the idea of enumerating specific freedoms in the new Constitution by arguing that only by securing “the great rights of mankind” could abuse of power be prevented. Madison maintained that the courts, the “independent tribunals of justice,” would make themselves “the guardian of those rights” and serve as “an impenetrable bulwark” against improper “assumption of [ x ] editors’ note power in the legislative or executive.” Which leads us back to Rich- ard Posner’s thesis. Are the courts the primary guardians of our rights, or must they defer to the executive “in time of national emergency”? Who is best positioned to make the pragmatic judgments on which our safety and liberties depend? Let the debate begin. April 2006 Geoffrey R. Stone Dedi Felman [ xi ] This page intentionally left blank not a suicide pact This page intentionally left blank . Introduction THIS IS A BOOK ABOUT THE CONSTITUTIONAL RIGHTS that impinge on the measures for the protection of national security that the U.S. government has taken in response to the terrorist attacks of September 11, 2001. It is thus about the marginal adjustments in such rights that practical-minded judges make when the values that underlie the rights—values such as personal liberty and privacy—come into conflict with values of equal importance, such as public safety, sud- denly magnified by the onset of a national emergency. Like any brittle thing, a Constitution that will not bend will break. The history of the United States has been punctuated by these emergencies. The greatest, after the early years of the Republic, was the Civil War; the crisis of constitutionalism that emergencies beget remains a legacy of that desperate struggle. The number of national emergencies accelerated in the twentieth century as the United States became a world power and then a nuclear power confronting other nuclear powers. There were the two world wars; the nation’s greatest economic depression, coinciding with the rise of totalitari- anism abroad in the 1930s; the Cold War, which lasted from 1948 to not a suicide pact 1989 and was punctuated by episodes of espionage, war, and near war (for example, the Cuban missile crisis); and, embedded within the Cold War, the Vietnam War and the domestic unrest and governmen- tal overreactions that the war sparked in the late 1960s and early 1970s. All these episodes placed pressure on existing constitutional un- derstandings. Now, in the early years of the twenty-first century, the nation faces the intertwined menaces of global terrorism and prolif- eration of weapons of mass destruction. A city can be destroyed by an atomic bomb the size of a melon, which if coated with lead would be undetectable.

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