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Balancing, Judicial Review, and Disobedience: Comments on Richard Posner's Analysis of Anti-Terror Measures (Not a Suicide Pact)

Published online by Cambridge University Press:  19 March 2012

Re'em Segev
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The general assumption that underlines Richard Posner's argument in his book Not a Suicide Pact is that decisions concerning rights and security in the context of modern terrorism should be made by balancing competing interests. This assumption is obviously correct if one refers to the most rudimentary sense of balancing, namely, the idea that normative decisions should be made in light of the importance of the relevant values and considerations. However, Posner advocates a more specific conception of balancing, both substantively and institutionally. Substantiality, he argues for balancing based on a consequential moral theory that rejects the ideas of deontological rights and particularly absolute or very weighty deontological rights. More specifically, it seems that Posner assumes a utilitarian theory that also rejects intrinsic concern for distributive justice. Institutionally, Posner argues that this method of reasoning should be adopted by judges when interpreting the Constitution. These substantive and institutional background assumptions are of course controversial, but I do not dispute them in this Article. My critique concerns Posner's conclusions based on these assumptions. Posner's main claim is that given the magnitude of the danger of modern terrorism, even a small probability that an act of terror may occur justifies extreme anti-terror measures.

Type
Symposium on Richard A. Posner's Not a Suicide Pact: The Constitution in a Time of National Emergency
Information
Israel Law Review , Volume 42 , Issue 2 , 2009 , pp. 234 - 247
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009

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References

1 Posner, Richard A., Not a Suicide Pact: The Constitution in a Time of National Emergency 31–35 (2006)Google Scholar.

2 For a criticism of the employment of consequential balancing in the context of the trade-off between security and freedom, see, e.g., Waldron, Jeremy, Security and Liberty: The Image of Balance, 11 J. Pol. Phil. 191, 195–200 (2003)Google Scholar; Moore, Michael S., Patrolling the Borders of Consequentialist Justifications: The Scope of Agent-Relative Restrictioins, 28 L. & Phil. 35 (2008)Google Scholar.

3 Posner, supra note 1, at 17-29.

4 It is less clear whether the opposite is also true, namely, whether there are moral arguments that are irrelevant to the legal analysis.

5 Posner, supra note 1, at 80.

6 Id.

7 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.

8 Posner, supra note 1, at 7-8.

9 Id.

10 Id. at 60-61.

11 Id. at 1-2.

12 Id. at 2.

13 Id. at 3.

14 Posner, supra note 1, at 2. However, Posner also emphasizes that restrictions on liberty in the United States in the past were limited in time. See id. at 44-47.

Posner notes that his argument is limited to terrorism in a strict sense—that is, he adopts a conception of terrorism that does not include “any politically motivated violent crime,” such as, for example, “crimes … committed by animal-rights fanatics” that are “no more dangerous than run-of-the-mill crimes.” Id. at 6-7. But his claim in the text that “we live in a time of grave and increasing danger” (id. at 3) refers to terrorism in the strict sense.

15 Id. at 6. However, compare the claim that the current war on terror in the United States involves less danger of abuse compared to other curtailments of civil liberties since the support for terrorism is weaker. See id., at 47-48.

16 Id. at 51.

17 See, e.g., id. at 40-41.

18 Id.

19 Id. at 51.

20 See Waldron, supra note 2, at 200 (“in order to evaluate the balancing argument, we have to ask tough questions about the distribution of the various changes envisaged in liberty and security… The perpetrators of the September 11 attacks were foreigners, members of a foreign organization, and the U.S. government has taken that as grounds for drawing some quite sharp distinctions in its subsequent legislation between the protections accorded to the civil liberties of Americans and the protections accorded to others who are legally in the United States”).

21 I explain some of my assumption in this regard in Segev, Re'em, Second-Order Equality and Levelling Down, 87 Australasian J. Phil. 425 (2009)CrossRefGoogle Scholar; Segev, Re'em, Well-Being and Fairness, 131 Phil. Stud. 369 (2006)CrossRefGoogle Scholar.

22 Compare to the distinction between these two kinds of justifications with regard to acts of terror: Pogge, Thomas, Making War on Terrorists—Reflections on Harming the Innocent, 16 J. Pol. Phil. 1, 5–6 (2007)Google Scholar.

23 Posner, supra note 1, at 151.

24 Id. at 51.

25 Id. at 24.

26 Id. at 27 & 37.

27 Id.

28 Id. at 37.

29 Cf. Lepsius, Oliver, Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-Terrorism Provision in the New Air-Transport Security Act, 7 German L. J. 771, 776 (2006)Google Scholar (“In the legislative process the balancing of freedom and security has become one sided. It is the Federal Constitutional Court, not parliament, that guards individual freedom in these days”).

30 See, e.g., Posner, supra note 1, at 61 (“people whose profession is to protect national security are unlikely to give a great deal of weight to civil liberties unless required to do so by some outside force, such as the judiciary”). But see Ladiges, Manuel, Comment—Oliver Lepsius's Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-Terrorism Provision in the New Air-Transport Security Act, 8 German L. J. 307, 309–10 (2007)Google Scholar (“the Court intensifies the motivation of attackers to hijack airplanes with innocent passengers on board, because the attackers can be certain that in such a situation the state has no legal means to shoot down the aircraft”).

31 See in this issue, Posner, Richard A., Précis, : National Security and Constitutional Law, 42 Isr. L. Rev 217, 220 (2009)Google Scholar [hereinafter Posner: Précis]

(Judges tend … to be ignorant about national security… But judges feel that they understand civil liberties … Judges think they understand rights, and the rights are rights to liberty rather than to physical security. I think they are often wrong, that their understanding is superficial; that they imbue the well-known constitutional rights with an almost supernatural significance that retards close study …. [some judges] rendered bold by their felt sense of mastery of civil liberties issues, and perhaps fooling themselves that national security issues are easy to master or that threats to security are always exaggerated … place tight restrictions on the security services).

32 See, e.g., Brennan, William J. Jr., The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises (Lecture Delivered at the Hebrew University of Jerusalem Law School, 1987), 1, 3–4Google Scholar (1798-1800), 5-6 (World War I), 8 (the Cold War), 8-9 (“The history of American treatment of civil liberties during national security crises … teaches that the perceived threats to national security that have motivated the sacrifice of civil liberties during times of crises are often overblown and factually unfounded”).

33 Posner: Précis, supra note 31, at 219 (“Generally courts in the United States have deferred to executive and legislative judgments concerning national security because they are in a poor position to question them”), and (“Some [judges] rendered diffident by their ignorance of national security issues, give the security services something close to a blank check”), id. at 220.

34 Posner, supra note 1, at 152-58.

35 Id. at 85-87.

36 Id. at 153-55.

37 For a more detailed exposition of this alternative see Gross, Oren, Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481 (2004)Google Scholar.

38 HCJ 5100/94 The Public Committee against Torture in Israel v. The Government of Israel [1999] IsrSC 53 817. For an analysis of this ruling see Kremnitzer, Mordechai & Segev, Re'em, The Legality of Interrogationa1 Torture: A Question of Proper Authorization or a Substantive Moral Issue?, 34 Isr. L. Rev. 509 (2000)Google Scholar.

39 Posner, supra note 1, at 86-87.

40 Cf. Card, Claudia, Ticking Bombs and Interrogations 2 Crim. L. & Phil. 1, 5 (2008)Google Scholar (“With, by hypothesis, no regulation of such defiance, what check is there on judgments about the extraordinariness of circumstances or the likelihood of torture's effectiveness? What is to prevent complete discretion to torture anyone?”).

41 Posner, supra note 1, at 156.

42 The Public Committee against Torture in Israel v. the Government of Israel, supra note 38.

43 See Reports of the Public Committee against Torture in Israel (PCATI), Ticking Bombs: Testimonies of Torture Victims in Israel (May, 2007)Google Scholar.

44 Posner, supra note 1, at 113.

45 Id. at 120.

46 Id. at 120-25.

47 Id. at 121.

48 Brandenburg v. Ohio 395, U.S. 444, 447 (1969) (“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”).

49 Posner, supra note 1, at 122.