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

For Posner, the threat of terrorism today is grave and not improbable. He argues, therefore, that a reasonable interpretation of the Constitution allows for coercive interrogation "up to and including torture," prior restraint prohibiting the publication of documents (provided they are properly classified), bans on inflammatory speech (although he does not recommend these), and surveillance, including of the kind apparently now practiced without judicial warrant by the National Security Agency (NSA). Indeed, he writes, "the government could, in the present emergency, intercept all electronic communications inside or outside the United States, of citizens as well as of foreigners, without being deemed to violate the Fourth Amendment," provided that computers winnowed the data before human agents reviewed it. Posner's qualifications are important. Still, only habeas corpus, a prisoner's right to have a neutral court review the legality of his imprisonment, survives unconditionally in Posner's regime. This is a crucial exception in light of the Bush administration's repeated claims in court that judges have no authority to review the U.S. military's detention practices. But once the habeas corpus hurdle is cleared, indefinite detention would pass muster with Posner. And with the possibility of endless imprisonment without trial, Posner's objections to using the fruits of coercive interrogation or warrantless surveillance in criminal prosecutions are largely beside the point.

By its very nature, economic analysis rests heavily on one's calculations of options and odds, costs and benefits. Posner accuses civil libertarians of "one-sidedness," but by his own admission he weights security more heavily than liberty. Moreover, his selection of choices sometimes skews the outcome: Certainly, one would prefer to be surveilled than arrested, but are these really the only policy options? Still, as Posner points out, despite the difficulties in making calculations, judgments need to be made, "and there is no good alternative to making them pragmatically."

This begs another question: Who should make these judgments? Posner puts his money on market competition among the branches of government -- that is, the operation of checks and balances. Given a Congress with more institutional pride, he would be right. But Posner's claim that Congress "has not been a rubber stamp for the national security initiatives of the Bush administration" rests more on faith than on fact. His examples of congressional independence -- such as the "hornet's nest stirred up in Congress" over revelations of wiretapping by the NSA and over the renewal of the Patriot Act -- do not reflect actual legislative outcomes. In fact, the House of Representatives and the Senate had merely passed different versions of laws legalizing the NSA's policy, and the Patriot Act was renewed essentially unchanged. The Military Commissions Act of 2006, which authorizes the prosecution of unlawful enemy combatants before military commissions (and was passed after these books were written), paints legislators less as hornets than as mayflies.

QUINTESSENTIALLY EXECUTIVE

All of this is fine by Yoo, since "the powers of war and peace" (as he wrote in a 2005 book) are largely vested in the president. Yoo sees no middle ground between "war" and "crime." Crime automatically activates wide procedural protections. And "because the Constitution's Bill of Rights establishes these rules," he argues, "they are not very flexible" -- an assertion that would presumably earn him a low grade from Professor Posner. But war, in turn, activates all sorts of executive powers, including over when and how to use force. This is a matter of historical practice: "Over time, the presidency has gained the leading role in war and national security because of its superior ability to take the initiative in response to emergencies." And it is a matter of definition: questions of national security are "quintessentially executive in nature," and so the Constitution implicitly vests authority over them in the commander in chief.

Yoo is therefore devoted to arguing that the war on terrorism is not about fighting crime; it is "a different kind of war" -- a war "by other means" -- which requires an adaptation of the traditional rules of war. One might not agree with Yoo that the attacks of September 11 alone activated the president's war powers. But Yoo is right to observe that Congress' September 2001 Authorization for Use of Military Force (AUMF), which was largely drafted by the White House, was a "declaration of war in purpose" with "no limitation on time and place." He also points out that the Supreme Court's 2004 decision in Hamdi v. Rumsfeld upheld the president's power under the AUMF to detain even U.S. citizens as enemy combatants, subject only to limited due process constraints.

So what might those "other means" include? Like Posner, Yoo thinks that broad warrantless surveillance, coercive interrogation, and indefinite detention (without habeas corpus rights, at least for aliens) are well within legal bounds. Like Posner, Yoo believes that such policies have clear benefits and that these outweigh the costs. But he rejects the notion that judges can or should monitor the system, because "there is no systematic, rational way to strike a balance between [the] competing values" of liberty and security. Having also sidelined Congress, Yoo effectively implies that the balance should be struck by executive fiat.