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How to Skip the Constitution

Like everything else, the Constitution has changed since September 11. So Richard Posner argues in his latest book, Not a Suicide Pact: The Constitution in a Time of National Emergency. Posner, a distinguished judge on the US Court of Appeals for the Seventh Circuit and the most prolific legal scholar of his generation, insists that the Constitution has changed sufficiently since September 11 to sanction virtually all of the Bush administration’s counterterrorism measures, including coercive interrogation, incommunicado detention, warrantless wiretapping, and ethnic profiling.

The only action by the Bush administration that Posner finds unconstitutional is its short-lived attempt to deny judicial review to US citizens in military custody in the US on grounds that they are “enemy combatants”—a position the administration itself abandoned after the US Court of Appeals for the Fourth Circuit, the most conservative court in the country, dismissed the argument as a “dangerous” proposition. Indeed, Posner’s Constitution would permit the administration to go even further than it has—among other things, he defends indefinite preventive detention, the banning of Islamic jihadist rhetoric, mass wiretapping of the entire nation, and making it a crime for newspapers to publish classified information, as when The Washington Post broke the story of the CIA’s “black sites” or when The New York Times disclosed the existence of the National Security Agency’s warrantless wiretapping program. All of these are permissible, Posner argues, because unless the Constitution “bends” in the face of threats to our national security, it “will break.” When Posner is finished bending the Constitution to reach these results, however, one might justifiably ask what is left to preserve from breaking.

Other federal judges, deciding actual cases or controversies, have found plenty that they concluded was unconstitutional about the administration’s anti-terror campaign since September 11. Courts have declared unconstitutional statutes making it a crime to provide “expert advice,” “services,” and “training” to groups designated by the government as terrorist. A provision of the Patriot Act authorizing the FBI to demand information by sending “national security letters,” a form of administrative subpoena issued without court review, was ruled unconstitutional because it barred recipients from informing anyone—including a lawyer or a court—of the fact that they had been subpoenaed. Several courts held unconstitutional Attorney General John Ashcroft’s directive to try hundreds of immigrants in secret proceedings closed to the public, the press, legal observers, and even their families.

Other judges held unconstitutional a regulation issued shortly after September 11 permitting immigration prosecutors to keep immigrants locked up even after immigration judges had found no basis for their detention and had ordered their release. Most significantly, the Supreme Court held unconstitutional the administration’s refusal to allow Yaser Hamdi, a US citizen captured in Afghanistan, a hearing in which he could challenge the official determination that he was an “enemy combatant.” And in August, a court declared unconstitutional President Bush’s secret order authorizing the NSA to conduct warrantless wiretapping within the United States.

Judge Posner is not troubled by any of these measures, at least as a constitutional matter. His theory of the Constitution is at once candid and cavalier. Rejecting popular conservative attacks on “judicial activism,” he argues that in view of the open-ended character of many of the document’s most important terms—“reasonable” searches and seizures, “due process of law,” “equal protection,” and even “liberty” itself—it is not objectionable but inevitable that constitutional law is made by judges. He dismisses the constitutional theories of textualism and originalism favored by many conservative judges and scholars as canards, arguing that neither the Constitution’s text nor the history of its framing gives much guidance in dealing with most of the hard questions of the day. Constitutional law, he maintains, “is intended to be a loose garment; if it binds too tightly, it will not be adaptable to changing circumstances.”

But Posner then goes on to treat the Constitution as essentially a license to open-ended “balancing” of interests by the political branches and the courts. His thinking is informed largely by an economist’s predilection for cost-benefit analysis and a philosophical enthusiasm for pragmatism. Posner’s reputation as a scholar rests not on his contributions to constitutional theory, but on his role as one of the founding fathers of the movement that applied economic analysis to law. His new book might just as well have been called “An Economist Looks at the Constitution.” In the end, constitutional interpretation for Posner is little more than a balancing act, and when the costs of a catastrophic terrorist attack are placed on the scale, he almost always feels they outweigh concerns about individual rights and liberties.

Consider, for example, his views on electronic surveillance. The Bush administration currently faces several dozen lawsuits challenging various aspects of its NSA spying program, which, according to the administration, involves the warrantless wiretapping of international phone calls and e-mails where one of the participants is thought to be connected with al-Qaeda or affiliated groups. That program, as I and many other constitutional scholars have argued, violates a provision in the Foreign Intelligence Surveillance Act (FISA) specifying that it is a crime for officials not to seek a warrant from the appropriate court before engaging in such wiretapping.1 The Bush administration seeks to justify this violation of law by invoking an inherent presidential power to ignore congressional legislation, echoing President Richard Nixon’s defense of his own decision to authorize warrantless wiretapping during the Vietnam War: “When the president does it, that means that it is not illegal.” Posner not only sees nothing wrong with the NSA program; he would also find constitutional a far more sweeping measure that subjected every phone call and e-mail in the nation, domestic as well as international, to initial computer screening for patterns of suspicious words, and then permitted intelligence agents to follow up on all communications that the computer treated as suspicious.

How does Posner reach the conclusion that the Constitution would permit such an Orwellian scheme, far more invasive than the Bush administration, if it is to be believed, has been willing to undertake so far? In a word, balancing. In Posner’s view, the costs to personal liberty of such a program are minimal, and are outweighed by the benefits to our security. Having a computer analyze one’s phone calls is no big deal, he claims, as long as we know it’s only looking for terrorists. He admits that there might be a danger of misuse of the information by the agents who follow up on the computer’s “suspects,” but he considers that risk minimal because he is confident that any such abuse would likely come to light and be widely criticized. (He fails to acknowledge that whistleblowing would be far less likely if he had his way and an Official Secrets Act were passed making it a crime to publish leaked government secrets.) As for the benefits of such surveillance, Posner surmises that such a program might sweep up sufficient data to permit intelligence agents to “connect the dots” and prevent a catastrophic attack. Even if it didn’t, he writes, it would at least have the salutary effect of discouraging terrorists from communicating by telephone and e-mail.

Every aspect of Posner’s analysis is open to question. He ignores that privacy is essential to political freedom: if everyone knows that their every electronic communication is subject to government monitoring, even by a computer, it would likely have a substantial chilling effect on communications that the government might conceivably find objectionable, not just terrorist planning, and not just criminal conduct. Moreover, Posner ignores the myriad ways in which the government can harass people without its ill intent ever coming to light. For example, the government can selectively prosecute minor infractions of the law, launch arbitrary tax investigations, and engage in blackmail, all methods perfected by FBI Director J. Edgar Hoover. Contrary to Posner’s claims, one cannot, as the FBI’s abuses showed, trust public scrutiny to forestall such tactics, even in the absence of an Official Secrets Act. Finally, it is far from clear that such a program would be effective—the sheer volume of “dots” generated would make connecting them virtually impossible. In any case, computer programs would be relatively easy to evade through the use of code words.

The real answer to Posner’s notion of balance, however, is not to show that a different balance can be struck, but to return to established Fourth Amendment jurisprudence, which has long required that searches must generally be justified by a showing of objective, specific suspicion approved by a judge who is willing to issue a specific warrant. The requirements that a warrant be issued and that it be based on “probable cause” are designed to protect privacy unless there are fairly strong grounds for official intrusion. The principal evil that the Fourth Amendment was drafted to avoid was the “general warrant,” which permitted government officials to search anyone’s home, without suspicion of specific individuals. Posner’s program is nothing less than a twenty-first-century version of exactly what the Fourth Amendment was designed to forbid. Through an open-ended and inevitably subjective balancing of privacy and security, he has managed to turn the Fourth Amendment on its head.

Posner’s analysis of coercive interrogation is similarly flawed. Here he incorrectly asserts that the prohibition on coerced confessions is predicated on the Fifth Amendment privilege against compelled self-incrimination; this privilege, he believes, would not apply if coerced testimony is used only for intelligence purposes, and not to incriminate the person interrogated. Here Posner disregards a long line of Supreme Court decisions banning “involuntary” confessions not on grounds of self-incrimination but because the methods of interrogation themselves were found to violate due process of law. Applying this due process test, the Court has consistently ruled that any tactics that compelled a suspect to speak against his will violated due process, even where other evidence showed that the coerced confession was reliable.2

Ignoring these cases, Posner discusses only Rochin v. California, which held that the Fifth Amendment’s due process clause was violated by pumping a suspect’s stomach in the hospital to search for drugs that he had allegedly swallowed. The Court found that such tactics “shock the conscience,” because they are “too close to the rack and screw.” As Posner concedes, if stomach-pumping in a hospital is too close to the rack and screw, most coercive interrogation tactics would seem to be impermissible as well. But he seeks to distinguish the Rochin decision from coercive questioning of suspected terrorists primarily on the ground that it involved the investigation of drug smuggling, which he considers a relatively minor crime. He maintains that greater coercion may be permissible where terrorism is the subject of investigation. According to his idea of balance, the greater the value of the information sought, the more coercion we should find acceptable without shocking our conscience. But of course one generally does not know the real value of the information before the coercion is applied; and Posner is talking about interrogations for intelligence-gathering purposes, which are by their nature much more open-ended than investigation of suspected criminals.

  1. 1

    See “On NSA Spying: A Letter to Congress,” The New York Review, February 9, 2006.

  2. 2

    See, for example, Rogers v. Richmond, 365 U.S. 534 (1961); Watts v. Indiana, 338 U.S. 49 (1949); Ashcroft v. Tennessee, 327 U.S. 274 (1946)

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