Courtesy Reuters

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

In This Review

Not a Suicide Pact: The Constitution in a Time of National Emergency.

By Richard A. Posner
Oxford University Press, 2006
171 pp. $18.95

War by Other Means: An Insider's Account of the War on Terror.

By John Yoo
Atlantic Monthly Press, 2006
292 pp. $24.00

Guantánamo and the Abuse of Presidential Power.

By Joseph Margulies
Simon & Schuster, 2006
322 pp. $25.00

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.


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,

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