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

• Author: Major Matthew R. Hover
• Pages: 09

164 MILITARY LAW REVIEW [Vol. 197

NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY1

REVIEWED BY MAJOR MATTHEW R. HOVER2

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, 2001.3

Introduction

With this ironically drafted first sentence of Not a Suicide Pact, author Richard A. Posner immediately impresses upon the reader his perspective that constitutional civil liberties are impeding national security measures, not vice versa.4 Judge Posner then quickly communicates his thesis that practical-minded judges should modify individual constitutional rights, if necessary, after pragmatically balancing a security measure's negative effect on personal liberty against its positive effect on public safety.5

Judge Posner uses this approach to analyze several national security measures that will continue to be relevant as the United States and its allies fight the Global War on Terror. Some of the measures, such as detention of suspected terrorists,6 military tribunals,7 and interrogations8 could directly or indirectly affect military lawyers. Deployed military lawyers will also face a dilemma very similar to one that Judge Posner explains in Not a Suicide Pact. He states that constitutional provisions "do not make a good match with the distinctive characteristics of modern terrorism, which defies conventional constitutional categories such as

war and crime."9 Similarly, military lawyers often face novel questions during counterinsurgency (COIN) operations in Iraq or Afghanistan, the answers to which do not fit neatly within the law of armed conflict.10 To determine whether military lawyers should use the balancing method to analyze a novel tactic, technique, or procedure (TTP)'s compliance with the law of armed conflict, this book review will examine Judge Posner's method, how he conceived it, and whether the method is appropriate for legal analysis.

This review will conclude that while Judge Posner's balancing method and his legal analyses of national security measures provide an interesting and provocative perspective, recent activity by the Supreme Court makes it highly unlikely that courts will adopt them to conduct their constitutional analysis. Similarly, military lawyers must apply available or analogous law, precedent, and policy to unique COIN issues instead of Posner's approach, or they will risk finding themselves on the wrong side of an investigation. Consequently, Not a Suicide Pact is a thought-provoking read, but neither civilian nor military practitioners will ultimately find much pragmatic value in it. Ironically, pragmatism is the value that Judge Posner claims to cherish the most.11

Judge Posner's Pragmatic Method

Judge Posner advocates "restrik[ing] the balance between the interest in liberty . . . and the interest in public safety, in recognition of the grave threat that terrorism poses to the nation's security."12 He recommends that judges modify constitutional rights accordingly when analyzing national security measures.13 To do this, one must try to "locate the point at which a slight expansion in the scope of the right would subtract more from public safety than it would add to personal liberty and a slight contraction would subtract more from personal liberty than it would add to public safety."14

A look at his background reveals that "Posner is best known as one of the founding fathers of the law and economics movement, so it is hardly surprising that his judgments are powerfully informed by an economist's fetish for cost-benefit analysis."15 Indeed, Judge Posner has written several books and articles on economic analysis of the law and related topics.16 He was also the founding editor of the American Law and Economics Review and the President of the American Law and Economics Association from 1995 to 1996.17

Judge Posner also doesn't hide his belief in judicial activism and the "dynamic character of constitutional law."18 He explains that constitutional rights are "more the handiwork of Supreme Court justices than of the Constitution's framers,"19 and the Justices "find themselves making decisions in much the same way that other Americans do-by balancing the anticipated consequences of alternative outcomes and picking the one that creates the greatest preponderance of good over bad effects."20 These beliefs were likely cultivated during his clerkship for Supreme Court Justice William J. Brennan Jr., widely known as a leading judicial activist.21

Posner uses his balancing approach to reach the following conclusions regarding seven national security measures. First, a terrorist suspect could be detained incommunicado for a reasonable time before a federal court would be required to review his detention.22 Second, the Constitution permits increasing amounts of coercive interrogation as the value of the information sought from a terrorist suspect increases.23

Third, the government could conduct practically warrantless interception of all electronic communications inside or outside the United States...