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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This may sound like an endorsement of judicial activism, but, according to Posner, it isn't. Indeed, he thinks that the pragmatic approach favors judicial restraint. Precisely because of the inevitably large pragmatic element in the adjudication of constitutional rights, justices should be restrained in invalidating the acts of the political branches. This is because Congress and the president are better equipped to weigh the actual or likely consequences of laws and policies, and they are better positioned to bring failed social and political experiments to an end.

Much of Posner's writing about the practice of judging over the last decade has been calculated to rile moral philosophers who believe that reason itself can decide hard cases, and to provoke law professors who insist on the autonomy of legal reasoning. However, this time around, his exposition of the pragmatic dimension of judicial decision-making has an eminently practical purpose: to show the path that national security law should take in the war against Islamic extremism. The key is to appreciate that the Constitution itself requires courts to balance two competing interests or goods, individual liberty and public safety.

Drawing on central insights of the law and economics school, of which he is a founding father, and translating them into terms suitable for dealing with hard constitutional cases, Posner sets forth the appropriate balancing test:

Ideally, in the case of a right (for example, the right to be free from unreasonable searches and seizures) that could be asserted against government measures for protecting national security, one would like 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. That is the point of balance, and determines the optimal scope of the right. The point shifts continuously as threats to liberty and safety wax and wane. At no time can the exact point be located. Yet to imagine it the object of our quest is useful in underscoring that the balance between liberty and safety must be struck at the margin. One is not to ask whether liberty is more or less important than safety. One is to ask whether a particular security measure harms liberty more or less than it promotes safety.

Of course, different justices will attach different weights to liberty and security, and come to different conclusions about the impact of specific measures on liberty and security. Posner does not deny or fear these difficulties. The purpose of his balancing test is not to eliminate but to refine the role of judgment in constitutional adjudication.

It follows that, at the margins, constitutional rights will and should vary with the threat that the nation faces. Posner recognizes that libertarians of both the left and right will decry this approach. They will prefer clear rules with very few exceptions--that, for instance, political speech can only be prohibited if it involves an incitement to crimes. They will also tend to discount the national security threat by treating terrorism as a species of crime. And they will warn darkly of the historical tendency of the government to chip away steadily at civil liberties in wartime in the name of dangers that eventually turn out to be farfetched.

To these libertarian objections, Posner replies that the rigidity of rules is disadvantageous when the constitutional terrain is as rocky and unfamiliar as it is in the case of jihadist terror. Further, he contends, unlike criminals but like traditional armies, Muslim extremists seek to cripple the state, and increasingly will have the means to do so, and thus pose a quantitatively and qualitatively different sort of threat than that for which the criminal law was designed.

Posner notes that what American history actually reveals is that, early on, when the enemy is poorly understood, government does truncate civil liberties--Lincoln's suspension of habeas corpus, FDR's internment of Japanese citizens, McCarthyite purges of suspected Communists--but that, as wars wear on, and well before they end, the government acquires an understanding of the adversary that allows it to continue to fight without further circumscribing civil liberties.

Posner admonishes those libertarians who would brook no trade-offs in civil liberties, in exchange for heightened security measures, for missing the larger picture. Nothing, he points out, is more sure to bring about a severe restriction of civil liberties in America than the backlash following the failure to prevent another 9/11, or worse.

Posner puts his balancing test to work on several of the novel and difficult legal issues raised by the war on terror, including questions concerning detention, interrogation, search and surveillance, speech, and privacy. Posner's reasoning, though debatable, is invariably illuminating, and overall demonstrates that the Constitution, pragmatically interpreted, is both sturdy and flexible, capable in the war we are now waging of protecting liberty and maintaining security.

Consider his treatment of the detention and interrogation of enemy combatants. To determine the minimum protections, under the Constitution, to which terrorists are entitled, it is necessary to classify terrorists correctly. Because they are making war on the United States by threatening the nation's political sovereignty and territorial integrity, they are not criminals, and therefore they are not entitled to the procedural protections that the Constitution provides those accused of criminal wrongdoing.

However, because they violate the laws of war by fighting without a regular command structure, without uniforms, without carrying their weapons openly, and by targeting civilians, terrorists are not entitled to the procedural protections that cover prisoners of war, or lawful enemy combatants, under international law. So what rights does the Constitution provide for unlawful enemy combatants?

It depends, argues Posner. If unlawful combatants are foreigners and are captured and detained abroad, the case is simple: They have no rights under the Constitution. If a U.S. citizen is detained on suspicion of being an unlawful combatant, then, as Hamdi v. Rumsfeld concluded, the Constitution protects his right to habeas corpus, which gives him the chance to challenge the grounds of his detention in front of an impartial decision-maker.

If the noncitizen, unlawful combatant is captured abroad, but transferred to U.S. territory, then (according to the Court's 1946 Yamashita decision) he, too, is entitled to the writ of habeas corpus. In 2004, the Supreme Court held in Rasul v. Bush that foreign persons detained as unlawful combatants at Guantánamo, which technically is not U.S. territory, also had the right to contest their detention.

Is this good constitutional law? For the most part, Posner thinks that protecting the right of habeas corpus for citizens held as unlawful combatants strikes the proper balance between security and liberty. He would extend that protection to foreigners captured and detained in the United States on suspicion of being terrorists. After all, he points out, there is a much greater risk of mistakenly ascribing to an individual membership in a terrorist organization than of mistakenly ascribing to him membership in a nation-state's armed forces. And giving detainees a limited opportunity to convince an impartial decision-maker that they have been wrongly detained poses only a small threat to national security. (Limits on this opportunity may include permitting the holding of a suspected terrorist for a reasonable period before any hearing and, at the hearings, placing a heavy burden of proof on the detainee.)

Once detained, what methods of interrogation does the Constitution permit the government to employ to elicit information from unlawful enemy combatants? Does the Constitution permit torture? Setting aside for the moment America's international law obligations under the Convention against Torture, Posner points out that the Constitution, which regulates the gathering of evidence, interrogations, trials, and punishments in criminal cases, has very little to say about the acquisition of information from terrorists for the purpose of preventing death and destruction.

The currently applicable constitutional rule is that methods of interrogation that "shock the conscience" are unlawful. But, as Posner points out, this test is sensitive to context: "What shocks the conscience depends on circumstances. In life-and-death circumstances the use of even highly coercive methods of interrogation is unlikely to shock the conscience of most people, even thoughtful and humane ones."

Yet not all highly coercive methods of interrogation rise to the level of torture, which, according to the Convention against Torture, is defined as the infliction of severe physical or mental suffering. Nevertheless, Posner is convinced that "torture is warranted to avert a greater evil." But warranted is not the same as constitutional or lawful.

Even though he believes that many consciences would not be shocked by the decision to shove knives under a person's fingernails to obtain knowledge about the location of a nuclear weapon set to explode in a few hours in Washington, Posner concludes that it would be unwise to hold that the Constitution permits torture. In cases of emergency, where torture is warranted but not constitutional, Posner the pragmatist prefers "to trust public officers to perceive and act on a moral duty that is higher than their legal duty." This approach regards torture as a form of morally and politically justified civil disobedience. In the event, it requires public officials to explain the necessity of their conduct in a court of law, and counts on judges to take account of the necessity under which public officials acted in ordering torture.

The alternative is codifying the circumstances in which torture is lawful. Posner believes that the costs of codification are too high. The costs include the constraint security officials will feel in confronting novel circumstances not dreamt of by the lawmakers, and the open invitation to lawmakers created by codification to constantly expand the boundaries of the legally permissible.

As with his analysis of detention and interrogation, Posner's explorations of surveillance, speech, privacy, and sundry other legal issues raised by the war on jihadist terror reflect the view that "law must adjust to necessity born of emergency." It is Posner's large achievement in this small book to show that this adjustment--difficult and contentious though it may be--is necessary, just, and constitutional.

Peter Berkowitz teaches at the George Mason University School of Law and is the Tad and Dianne Taube senior fellow at the Hoover Institution at Stanford.