JURISPRUDENCE

Not Just Because Bush Says So

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By Dahlia Lithwick
Sunday, September 10, 2006

The Bush administration is marking the fifth anniversary of the Sept. 11 attacks this week with a charm offensive touting its War on Terror. At the less charming end of the spectrum: Defense Secretary Donald H. Rumsfeld's nasty attacks on war critics. More charming: President Bush's new willingness to empty secret CIA prisons and put the alleged 9/11 ringleaders on trial. But what's missing from all these election-season defenses of the government's actions is the same ingredient that has always been missing: a fair-minded balancing of what's been lost against what's been gained.

Like the administration's old rationalizations for the fight against terrorism, the new ones write off critics as appeasers or suggest that the United States is foiling terrorism plots through "alternative interrogation procedures." The president claims that every suspension of the laws of war, the Geneva Conventions and domestic civil liberties is justified because it is necessary, and is necessary because he says so. There is no recognition that important freedoms are lost; that waterboarding prisoners is more than "tough, and . . . safe, and lawful" or that programs such as the National Security Agency's warrantless surveillance of citizens carry a price.

That is why Richard A. Posner, a judge on the U.S. Court of Appeals for the 7th Circuit, is such a welcome voice in the national debate about freedom vs. security. Posner is renowned -- and not always in a good way -- for putting a price tag on everything . But whatever quibbles liberals may have with his law-and-economics approach to issues such as rape and unwanted pregnancies, they should celebrate the rigor he brings to the problem of civil liberties in wartime. In his new book, "Not a Suicide Pact: The Constitution in a Time of National Emergency," Posner approaches the wartime civil liberties problem in precisely the manner the Bush administration will not: with a dispassionate weighing of what is won against what is forsaken each time the government engages in data mining, indefinite detentions or the suppression of free speech.

Posner first quickly dispenses with the notion of an immutable Constitution; indeed, as Instapundit blogger Glenn Reynolds and his wife recently discovered in an interview with the judge, Posner may even be embracing the liberal concept of an evolving "living constitution" that keeps pace with modern life. But if one agrees that the boundaries of what is "constitutional" are almost completely mutable, one can easily appreciate Posner's approach to determining which suspensions of constitutional rights are justifiable in wartime.

Posner concludes that broader government surveillance powers, computerized data mining, zealous deterrence of media leaks and even "coercive interrogation up to and including torture" are all constitutionally permissible against an unprecedented new threat. And though I may differ with him on the balances he strikes between liberty and safety, I find his essential project -- the notion that fundamentalist terrorism is not quite a crime, and not quite a war; and that new systems require meticulous calibration -- vastly preferable to the all-or-nothing vision of Bush and his lawyers.

By virtue of his analysis, Posner even criticizes a few Bush administration decisions. He questions, for instance, the decision to suspend the right to habeas corpus of U.S. citizens or foreign terrorism suspects captured in the United States, because he thinks the cost of indefinite detention exceeds the gain in public safety. It is precisely this kind of exercise that makes Posner's book so important, as voters begin the preelection analysis of which elements of the president's surveillance, detention and prosecution strategy have made us safer -- and which have made us less free.

But if we are really to follow Posner's lead and undertake a sober national assessment of the costs and benefits of suspending civil liberties, we need better information on, well, the costs and the benefits. Surely Posner would agree that a good consumer is an informed consumer. But is anyone informed enough to engage in such an analysis?

For instance, Posner seems to share Bush's assumption that torture is, broadly speaking, worth it, that it extracts information that can disrupt terrorism plots. He goes on to argue that even in the face of anti-torture statutes, there is a moral obligation -- in, say, ticking time-bomb situations -- for leaders to exercise a form of civil disobedience and ignore the statutes.

But without fuller information on who is being tortured, and how, and for how long, and how many false confessions are elicited, how is a meaningful cost-benefit assessment possible? I am willing to be convinced, nearly five years later, that provisions of the USA Patriot Act really do make us safer. But I am not moved by assertion alone. How can I weigh the security benefits of so-called national security letters, or the subpoena of my library records, if the government refuses to disclose how that information is used and why?

If I can only assess the curtailment of my civil liberties against the government's claims that such curtailment makes me safer, then no real balancing is possible; I am merely weighing my own subjective sense of freedom against the president's promise that I am safer. Posner argues convincingly that our judges don't have the institutional capacity to decide these questions of national security. But then, using only the knowledge he has as a judge, he undertakes precisely such a balancing test. Why? Because, as he reveals, smart, "generalist" judges are still better situated to perform the kinds of assessments necessary to measure whether Freedom A is worth sacrificing for Security Measure X.

The real power of Posner's effort is that he stands back and measures whether Guantanamo Bay and wiretapping are really worth it. It's proof that the best cure for partisan shrieking is a good old-fashioned game of cost-benefit analysis. Now, if the Bush administration would follow suit and frame the debate about freedom and war in terms of security gains and civil-liberties sacrifices (rather than cheap attacks on critics or grandiose claims of unlimited wartime authority) we might begin the sort of careful debate about this possibly never-ending fight against terrorism -- a debate that is long overdue.

dahlia.lithwick@hotmail.com

Dahlia Lithwick covers legal affairs for Slate, the online magazine at www.slate.com.


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