Point & Glick

I just fin­ished Judge Richard Posner’s …Not a Sui­cide Pact. It is an intrigu­ing and thought-provoking read — how­ever, I’m left with a par­tic­u­larly par­ti­san taste in my mouth.
I quite enjoyed the back­ground and real­is­tic per­spec­tive Pos­ner offers on national secu­rity and fight­ing ter­ror­ism. The dis­tinc­tions he draws between past threats and the cur­rent threat of global, uncon­ven­tional ter­ror­ism are valid… to a point.

J. Pos­ner lays out his excep­tion­ally valid argu­ment for why police pro­ce­dures do not ade­quately meet national secu­rity against ter­ror­ism; he makes intel­li­gent (if not con­vinc­ing) argu­ments for both why and how civil lib­er­ties must be weighed against national secu­rity mea­sures in times of national emer­gen­cies. He pays lip ser­vice to civil lib­er­tar­i­ans but dis­misses them, ulti­mately terming their views “exces­sive” and “irre­spon­si­ble”, but that is to be expected; after all, he hardly expects to con­vince any lib­er­tar­i­ans with his argu­ments. The biggest warn­ing flag was in the con­clu­sion, a pas­sage that was rem­i­nis­cent of Jus­tice Scalia’s dis­sent in Boume­di­ene:

Though scat­tered by our inva­sion of Afghanistan and by our stepped-up efforts at coun­tert­er­ror­ism, ter­ror­ist lead­ers may even now be regroup­ing, and prepar­ing an attack that will pro­duce destruc­tion on a scale to dwarf 9/11.(p.148)

Com­pare that pas­sage to Scalia’s:

I think it appro­pri­ate to begin with a descrip­tion of the dis­as­trous con­se­quences of what the Court has done today… It will almost cer­tainly cause more Amer­i­cans to be killed… The Nation will live to regret what the Court has done today.

Why, must they resort to base fear mon­ger­ing? I thought that was the exclu­sive juris­dic­tion of the media.
I would still sug­gest this book — it is an inter­est­ing read and at least gives excel­lent jump­ing off points for think­ing the issues through yourself.

UPDATE — 1/1/09 –
I real­ized late last night that I failed to make any men­tion of the actual point of the book.
J. Pos­ner points out many times that his main the­sis in the book is that many of the “cur­tail­ments” of civil lib­er­ties in times of national emer­gen­cies are, in fact, con­sti­tu­tional. To his credit, he stip­u­lates that just being con­sti­tu­tional does not nec­es­sar­ily make some­thing morally correct.

The con­sti­tu­tional issues he raises and attempts to put to rest waver right on the edge — depen­dent on how you view the con­sti­tu­tion and the impor­tance of the framers’ intent. I com­pared his views to Jus­tice Scalia’s ear­lier; those sim­i­lar­i­ties exist only so far as their agree­ment about the dan­ger of ter­ror­ism. I’m sure Scalia would have choice words regard­ing Posner’s view that:

Lan­guage and drafters’ intent are not the only or even, in my judg­ment, the best guides to con­sti­tu­tional rule mak­ing; they are merely the most ortho­dox ones.

That being said, I feel that Posner’s view is a much more prac­ti­cal and real­is­tic one than Scalia’s; I sim­ply dis­agree with the extent of some of the con­clu­sions in this book.