The Magazine

Freedom at War

Civil liberties in the age of terrorism.

Sep 18, 2006, Vol. 12, No. 01 • By PETER BERKOWITZ
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Not a Suicide Pact

The Constitution in a Time of National Emergency

by Richard A. Posner

Oxford, 208 pp., $18.95

In late June, Linda Greenhouse of the New York Times breathlessly reported on the front page, above the fold and under a big headline, that in the just-announced case of Hamdan v. Rumsfeld, the Supreme Court "shredded each of the administration's arguments." The decision--which held that, as organized, the military tribunals the Bush administration had created to try unlawful combatants seized on the battlefield in Afghan istan, were contrary to federal law and a provision of the Geneva Conventions--was, Greenhouse gushed, "a sweeping and categorical defeat for the Bush administration."

Indeed, she proclaimed, the decision was a "historic event, a definitional moment in the ever-shifting balance of power among the branches of government that ranked with the court's order to President Nixon in 1974 to turn over the Watergate tapes or with the court's rejection of President Harry S. Truman's seizing [in 1952] of the nation's steel mills."

Never mind that the Court had not questioned the government's right to detain Salim Ahmed Hamdan, allegedly Osama bin Laden's driver and bodyguard, without charge or trial, as an unlawful combatant, until such time as the conflict between the United States and al Qaeda comes to an end. Never mind that, in a paragraph-long concurring opinion, Justice Breyer emphasized that much, if not all, of the military tribunal procedures designed by the Bush administration would pass legal muster if explicitly authorized by Congress. Never mind that the Court's opinion commanded only a narrow five-justice majority. And never mind that Justices Scalia, Thomas, and Alito each authored powerful dissents that elaborated serious objections to which the majority's principal legal arguments are exposed. (Chief Justice Roberts did not participate in the case because, as judge on the D.C. Court of Appeals, he joined the opinion, which Hamdan reversed, upholding the administration's military tribunals.)

What was truly remarkable about Greenhouse's performance--her lengthy article was not an op-ed column or piece of "news analysis" but a news story of the sort customarily intended to provide a dispassionate and well-rounded account of the facts--was the omission of a single reference to the features of America's national security situation that motivated the Bush administration to turn to the use of military tribunals. In this failure to put national security considerations into the balance, let alone give them their due weight, Greenhouse and her editors at the Times typify the complacency and shortsightedness in thinking about constitutional rights and the war on terror that Judge Richard Posner's trenchant new book seeks to correct.

Rarely ceasing to amaze over the last three decades or so with the range of his intellectual interests and the acuteness of his analytical powers (and occasionally with the irreverence of his observations and unconventionality of his conclusions), Posner has, in the last several years, turned his attention to questions of national security. In 2004 he published Catastrophe, a book on the regulation of grave but remote risk: For example, what policy should government adopt if a physics experiment poses a truly extraordinary harm--say, the destruction of the planet--but the harm has an exceedingly remote likelihood, perhaps a one-in-fifty-million chance, of coming to pass? And in the last year, Posner published Preventing Surprise Attacks, and a sequel, Uncertain Shield, which explore the nature of intelligence-gathering and analysis, the strengths and weaknesses of our pre-9/11 intelligence system, and post-9/11 reform efforts. (Both volumes appear under the imprint of Hoover Studies, a series for which I serve as co-general editor.)

With his new book, Posner carries forward his analysis of national security questions into the sphere of constitutional law. True to the pragmatic approach to judging that he has long championed, Posner grounds his analysis of national security law and the Constitution in an appreciation of concrete circumstances. The danger posed by jihadist terror, according to Posner, is novel, grave, and growing. As he explains with characteristic vigor, this is partly because of the weapons increasingly at our enemies' disposal: