Not a Suicide Pact: The Constitution in a Time of National Emergency.

• Author: Reinhardt, Stephen
• Position: Book review

NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY. By Richard A. Posner. New York: Oxford University Press. 2006. Pp. xiv, 178. $18.95.

INTRODUCTION

What is most remarkable about Richard Posner's (1) latest book--and he has written many--is that he argues that we should repose full confidence in the executive branch to handle the most sensitive constitutional issues of our time without once mentioning the flagrant breaches of law and critical falsehoods with which President Bush and his administration have deluged the public since 9/11. This only seven years after he composed a lengthy tome regarding President Clinton's impeachment in which he appropriately, if harshly, condemned the president for his unethical and illegal conduct, principally his deliberate lies and purposeful lack of candor with the American people. (2) Nor, although perhaps less directly relevant to his present book, does Posner discuss at any point the lawlessness and deception of President Nixon and his high aides and advisors, let alone the Iran-Contra affair under the Reagan administration or the countless other executive branch abuses of power we have suffered in the past twenty-five years.

Posner's omissions critically undermine the central argument of Not a Suicide Pact: The Constitution in a Time of National Emergency. Posner advocates a shrinking Constitution whenever the country faces a national emergency; he advises that in such times, we should look exclusively to the executive branch, not the courts, to safeguard our most valued freedoms because judges "know[] little about the needs of national security" (p. 9). Apparently Posner's answer to the problem of balancing national security with liberty is to simply leave the fate of our Constitution to George W. Bush and Dick Cheney. Although Posner writes eloquently about history, he seems to have learned little from it--or from current events that appear on the front pages of our newspapers daily. The problem with Posner is not his writing, which is excellent. The problem is his judgment, which is not.

1. THE NEVER-ENDING EMERGENCY

   One fundamental difficulty with Posner's thesis is that the current national emergency that evoked his latest outpouring of advice to the citizenry (3) is unlike all other national emergencies in the history of our country. Most emergencies have occurred in times of declared war or civil war; all could be seen clearly from the outset as being of limited duration. Today's national emergency--whether it be viewed as the continuing threat from al-Qaeda or, more broadly, as the threat from the potential actions of Islamic fundamentalist terrorist groups--has no temporal boundaries. Nor is the state of crisis likely to end, like more traditional wars, with a peace treaty or other formal negotiated agreement. In fact, there may be no clear way of determining if and when the type of national emergency that now confronts us has in fact come to an end, if it ever does in our lifetime. In short, we face an indefinite or semipermanent state of national emergency, which requires us to ask, Do we really want to surrender our constitutional rights, or even turn them over to the tender mercies of the executive branch (including those who advocate jailing American citizens without court approval), when the changes that are made may indeed become permanent? In practical reality, given the indeterminate length of the current emergency, the subtitle of Posner's book could well be simply The Constitution rather than The Constitution in a Time of National Emergency.

   Although few would doubt that we presently face a serious threat to our national well-being from outside forces or that the prospect of further attack by foreign terrorist forces must be of critical concern to any national administration, recent history reveals that an unchecked executive branch and an amorphous national threat are a dangerous combination. No more need be said about how the nation was cajoled into an unnecessary and undesirable war in Iraq, not only by the deliberate creation of fears over nonexistent nuclear weapons, but by false representations concerning the presence of al-Qaeda in that country--or that the nonpartisan head of our top intelligence agency simply told the president what he knew his client wanted to hear when he said, "It's a slam dunk." (4) The use of terrorism to promote a president's political agenda, unfortunately, is not a practice limited to President Bush. President Clinton used the bombing of the Oklahoma City federal building by two members of an otherwise harmless militia movement to have attached a little-noticed provision to an antiterrorism bill. (5) The provision drastically limited the rights of state prisoners to present constitutional challenges to their state convictions and sentences, especially death sentences. Commonly referred to by the name of the statute as a whole, the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the provision, enacted only months before the 1996 presidential election, had nothing to do with terrorism--but it did allow Clinton to argue that he was tough on crime, a law-and-order president, and deserving of reelection. Given this history, it is important that we define national threats circumspectly and not permit them to be used as a cover for other, more political goals a president may have.

   In one peculiar passage, Posner lumps foreign and domestic assaults on life and property, both major and minor, under a large umbrella of terrorism. His approach is similar to President Clinton's blatant political action with respect to AEDPA in 1996, but it is less understandable because Posner is both a judge and a scholar. After announcing the curious and heretofore unrecognized proposition that it was the Soviet Union's theft of atomic secrets that "emboldened Stalin to encourage North Korea to invade South Korea, precipitating a war that killed thirty-six thousand American soldiers," Posner proceeds to charge that "terrorism by Puerto Rican separatists, neo-Nazis, the Jewish Defense League, left-wing radicals such as the Weathermen, and al-Qaeda culminated in" the 9/11 attack (p. 46). What the Jewish Defense League or the other groups have to do with al-Qaeda or 9/11 is beyond me, but Posner's treatment of all these groups in a similar manner illustrates the danger of failing to limit our definition of national emergency to specific occurrences that truly threaten our nation's security. It also makes one shudder at the idea of our national policy being guided by those sharing Posner's sweeping and indiscriminate views of terrorism.

2. WHAT JUDGES DO

   Before discussing the major points of Not a...