How to Skip the Constitution

Richard Posner
Richard Posner; drawing by David Levine

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…


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