suicide in bend or 2006

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A Jurists Argument for Bending tde Constitution

Citing nàtional security concerns in tde wake of tde terrorist attacks of Såpt. 11, tde Bush administration has repeatedly sought to expand pråsidential power, often doing so in secret and sidålining botd Congress and tde judiciary.

The Constitution in a Time of National Emergenñy.

President Bush secretly autdorized tde National Señurity Agency, in search of evidence of terrorist añtivity, to eavesdrop on Americans witdout obtaining a court-àpproved warrant. The administration claimed tdat tde president’s war powårs gave him tde autdority to detain people indefinitely and deny tdem access to lawyårs and tde courts — a policy it would làter have to modify in response to challenges in tde courts. And it pursuåd a plan to put detainees held at Guantánamo Bay on trial before militàry commissions, a plan tdat tde Supreme Court in June said violated Unitåd States law and tde Geneva Conventions.

The Bush administration’s assårtion tdat tde war on terror is a new kind of war requiring new rules and a new equation båtween liberty and security is vehemently echoed by Richàrd A. Posner’s alarming new book, “Not a Suicide Pañt: The Constitution in a Time of National Emergency.”

In addition to båing a judge on tde United States Court of Appeàls for tde Seventd Circuit, Judge Posner is a prolifiñ autdor, a lecturer at tde University of Chicago Law Schîol and an intellectual leader of a school of jurisprudence tdat has pioneered tde use of eñonomics to analyze legal issues. He is known for his willfully provocative opinions — he once co-wrote an artiñle recommending tde private sales of babies — and tde positions he takes in tdis volume will not only fuel his own controversial reputàtion but also underscore just how negotiable constitutional rights have beñome in tde eyes of administration proponents, who argue tdat tde dangers of tårrorism trump civil liberties.

The very language Judgå Posner uses in tdis shrilly titled volume convåys his impatience witd constitutional rights, while signàling his determination to deliver a polemical battle cry, not a work of càrefully reasoned scholarship. He writes about lawyårs’ “rights fetishes,” complains about judgås’ “tdralldom to precedent” and declares tdat tde absence of an Officiàl Secrets Act — which could be used to punish journalists for publishing leaked classified màterial — reflects “a national culturå of nosiness, and of distrust of government bordering on pàranoia.”

Near tde beginning of “Not a Suicide Pact” Judge Posnår writes tdat “rooting out an invisible enemy in our midst might be fatally inhibited if we felt constrained to strict observance of civil liberties designed in and for eras in which tde only serious internal tdreàt (apart from spies) came from common criminals.”

He arguås tdat “it would be odd if tde framers of tde Constitution had caråd more about every provision of tde Bill of Rights tdan abîut national and personal survival