Civil Rights, Uncivil Wrongs:The War on Terrorism's Toll on the U.S. Constitution

Much of the already voluminous commentary on the war on terrorism centers on the question of whether it is a war at all. These three books are willing to stipulate, with varying degrees of enthusiasm, that it is. They differ dramatically, however, over what tactics this war allows and, more broadly, what it means for governing within the limits of the U.S. Constitution. Richard Posner, the prolific circuit court judge and University of Chicago law professor, argues that civil liberties must "vary with the threat level" but that much of what the government is authorized to do under the Constitution "it should not do." To one side of Posner is John Yoo, the Berkeley law professor and former member of the Justice Department's Office of Legal Counsel who spearheaded the Bush administration's legal response to the September 11 attacks; Yoo holds that the strongest presidential claims to unilateral authority are correct and that the resulting policies have "crippled al Qaeda." Far to the other side is Joseph Margulies, a Northwestern University law professor and counsel for several men held at Guantánamo Bay (most prominently the British national Shafiq Rasul, who was released in 2004). Margulies condemns the Bush administration's policies and rejects the notion that war powers can be exercised without being "restrained by the rule of law." Together these books illuminate what the war on terrorism requires of both politicians and citizens -- and they tally very differently the costs and the benefits of the course chosen so far.

A LITTLE PRACTICAL WISDOM

Perhaps because of potential conflicts with his day job, Posner has eschewed constitutional interpretation and focused on policy in much of his work. In Not a Suicide Pact, an erudite, if sometimes breezy, book, he does the opposite, focusing on the protections granted by the Constitution; few, he concludes, are inalienable. He borrows his title from a dissenting opinion in a 1949 Supreme Court case, in which Justice Robert Jackson opposed the majority's decision to protect hate speech, warning that "if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." For Posner, constitutional rights are "especially plastic." They are shaped mainly by the Supreme Court justices' interpretation of the Constitution, and interpretations may change with context. National emergencies, for one thing, "may alter the scope of a right." For Posner, the potential link between terrorist organizations and weapons of mass destruction creates just such an emergency today. The situation calls for a "tailored regime" that ranks terrorism somewhere between war and crime and "that gives terrorist suspects fewer constitutional rights than people suspected of ordinary crimes, though not no rights."

Determining what rights exactly -- and how the tailored regime should be stitched together -- must involve a clearheaded, "instrumental" assessment of costs and benefits. Rights should be determined by balancing the interests of public safety and those of personal liberty. At the heart of Posner's analysis is the econometric concept of expected value: What is an outcome worth given the likelihood of its occurrence? (For example, a $1 lottery ticket with a one-in-a-million chance of winning $1 million has an expected value of $1.) Civil liberties, too, have a payoff, yet their benefits are sometimes speculative, and "probabilistic menaces" to public safety, however far in the future they may be realized, "must be weighed along with certain ones."

Posner is, in effect, reframing Justice Oliver Wendell Holmes' famous 1919 rule for limiting free speech when it presents "a clear and present danger" in order to deal with a clear and probable danger. The Supreme Court did as much in the 1951 case Dennis v. United States, upholding the government's right to ban speech that advocated the government's forceful overthrow. Posner gives the case surprisingly little treatment, but it is noteworthy: the Court rejected the plaintiffs' free-speech claims as subordinate to "other values and considerations" relating to the threat of communism. A majority of the Dennis court strongly endorsed the lower court's view that "in each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."