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

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Eavesdropping on the phone calls of U.S. citizens; demands by the FBI for records of library borrowings; establishment of military tribunals to try suspected terrorists, including U.S. citizens—many of the measures taken by the Bush administration since 9/11 have sparked heated protests. In Not a Suicide Pact, Judge Richard A. Posner offers a cogent and elegant response to these protests, arguing that personal liberty must be balanced with public safety in the face of grave national danger.

Critical of civil libertarians who balk at any curtailment of their rights, even in the face of an unprecedented terrorist threat in an era of proliferation of weapons of mass destruction, Posner takes a fresh look at the most important constitutional issues that have arisen since 9/11. These issues include the constitutional rights of terrorist suspects (whether American citizens or not) to habeas corpus and due process, and their rights against brutal interrogation (including torture) and searches based on less than probable cause. Posner argues that terrorist activity is sui generis—it is neither "war" nor "crime"—and it demands a tailored response, one that gives terror suspects fewer constitutional rights than persons suspected of ordinary criminal activity. Constitutional law must remain fluid, protean, and responsive to the pressure of contemporary events. Posner stresses the limits of law in regulating national security measures and underscores the paradoxical need to recognize a category of government conduct that is at once illegal and morally obligatory.

One of America's top legal thinkers, Posner does not pull punches. He offers readers a short, sharp book with a strong point of view that is certain to generate much debate.


This is inaugural volume in Oxford's new fourteen-book Inalienable Rights Series. Each book will be a short, analytically sharp exploration of a particular right—to bear arms, to religious freedom, to free speech—clarifying the issues swirling around these rights and challenging us to rethink our most cherished freedoms.

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Editorial Reviews

From the Publisher
"A welcome voice in the national debate about freedom vs. security."—The Washington Post Book World

"...Posner's invariably illuminating, and overall demonstrates that the Constitution, pragmatically interpreted, is both sturdy and flexible, capable in the war we are now waging of protecting liberty and maintaining security."—Weekly Standard

"Posner's new book, Not A Suicide Pact, is characteristically hawkish...Reader either will or won't share Posner's predilection to trust the government in dire-seeming times; there is certainly much to be said on the other side...Posner is far more provocative and surprising when he reveals the limits of his trust."—New York Times Book Review

"Known for his willfully provocative opinions...the positions he takes in this volume will not only fuel his own controversial reputation but also underscore just how negotiable constitutional rights have become in the eyes of administration proponents."—The New York Times

"...Posner's invariably illuminating, and overall demonstrates that the Constitution, pragmatically interpreted, is both sturdy and flexible, capable in the war we are now waging of protecting liberty and maintaining security."—Weekly Standard

"His views will provoke Category 5 protest from civil libertarians.... He ably makes the case for his side in the national debate."—Publishers Weekly

"Undaunted by controversy, Posner forthrightly addresses detention, harsh interrogation methods, limits of free speech, ethnic profiling, and the boundaries of privacy rights, among other hot-button topics. Posner's book deserves to be commended for its policy recommendations, which are almost unfailingly sane."—Ethics & International Affairs

Emily Bazelton
… Posner’s repudiation of Yoo is one of a few telling moments in which he takes a cautionary approach to presidential power — and sounds a bit like a civil libertarian. Just a bit, but it’s good to know he has it in him.
— The New York Times
Publishers Weekly
Posner, who sits on the U.S. Court of Appeals for the Seventh Circuit, inaugurates a new series on inalienable rights. The series is intended to stimulate debate, and Posner's work will do exactly that, drilling energetically into a set of issues raised by what he sees as an unprecedented emergency. In the fact of terrorism and the threat of WMDs, he argues, the scope of constitutional rights must be adjusted i.e., narrowed in a pragmatic but rational manner. Saying we must balance the harm new security measures inflict on personal liberty against the increased security those measures provide, Posner comes down, in most but not quite all respects, on the side of increased government power. He advocates that coercive and even brutal forms of interrogation should be allowed in proper circumstances, that all communications within the United States should be subject to interception, and that government should have authority to enjoin publication of classified information. Posner (An Affair of State) would impose limits and qualifications on these assertions of government power, but even so, his views will provoke Category 5 protest from civil libertarians. You may agree with or be appalled by Posner's cost-benefit analyses, but the author's premises are explicit, his writing is economical and precise, and he ably makes the case for his side in the national debate. (Sept. 18) Copyright 2006 Reed Business Information.
Library Journal
Posner (Overcoming Law), a judge of the U.S. Court of Appeals for the Seventh Circuit, asks whether new definitions of rights are required in this post-9/11 era of heightened security, what the delicate balance should be between personal liberty and public safety, and to what degree civil liberties derived from the Constitution should vary with the threat level. Further, he asks which branch of our national government should define that threat level, imposing pragmatic reductions of citizens' rights. Posner deals with a wide range of current civil liberties issues ranging from National Security Agency eavesdropping on citizens' domestic and international phone calls to the constitutional rights of terrorist suspects. Two of Posner's main arguments are that a nonlegal "law of necessity" would justify contravening the Constitution in extreme situations and that "it is constitutional to criminalize the expression of terrorism promoting beliefs." Generally, his analysis is well argued within the established framework, which omits rights established by congressional legislation. General readers and individuals interested in civil liberties and legal matters concerning national security will find this highly recommended book worthwhile. [This is the first of 14 titles in Oxford University Press's "Inalienable Rights" series.-Ed.].-Steven Puro, St. Louis Univ. Copyright 2006 Reed Business Information.
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Product Details

  • ISBN-13: 9780195304275
  • Publisher: Oxford University Press, USA
  • Publication date: 9/28/2006
  • Series: Inalienable Rights Series
  • Edition description: New Edition
  • Pages: 208
  • Sales rank: 488,974
  • Product dimensions: 8.30 (w) x 5.80 (h) x 0.80 (d)

Meet the Author

Richard A. Posner is Judge of the U.S. Court of Appeals for the Seventh Circuit, in Chicago, and lectures at the University of Chicago Law School. He is the author of many books and articles, including Overcoming Law and An Affair of State, both of which were picked by The New York Times Book Review as among the best books of their year.

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Table of Contents

Ch. 1 How are constitutional rights created? 17
Ch. 2 How does national security shape constitutional rights? 31
Ch. 3 Rights against detention 53
Ch. 4 Rights against brutal interrogation, and against searches and seizures 77
Ch. 5 The right of free speech, with a comment on profiling 105
Ch. 6 Rights of privacy 124
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