Richard A. Posner

Richard A. Posner is Senior Lecturer in Law at the University of Chicago Law School and a a judge on the United States Court of Appeals for the Seventh Circuit. Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford University Press, 2006) is among the more recent of Judge Posner's many publications.

The political scientist Cary Federman, author of The Body and the State: Habeas Corpus and American Jurisprudence and a professor in the Department of Justice Studies at Montclair State University, developed a few questions about the book to which Judge Posner replied:

Federman: Does it matter for civil liberties whether the US classifies those who flew the planes into the World Trade Center as terrorists or criminals?

Posner: These aren't mutually exclusive categories. Terrorists are criminals. The issue is whether to classify them as criminals, as enemy soldiers, or as illegal combatants. If they are put in the last box, their civil liberties would be substantially curtailed. Their civil liberties would be at the highest level if they were treated as criminals, but if they were treated as ordinary soldiers they would be entitled to substantial protections, for example against punishment and mistreatment, including coercive interrogation.

Federman: Persons who have been labeled as threats to national security have historically been tried in federal courts – this is the central meaning of Ex parte Milligan. As long as federal courts are open, why is there a need to try anyone in a military tribunal?

Posner: I discuss this at some length in my book, and also in a newer book, Countering Terrorism: Blurred Focus, Halting Steps, which will be published by Rowman & Littlefield and the Hoover Institution next month). The criminal justice system has been designed to deal with ordinary crime, and is not well adapted to dealing with international terrorism.

Federman: As a practical matter, does a heightened concern over national security necessarily demote the role of the judiciary?

Posner: No, because the judiciary has the last word on determining the constitutional balance between liberty and security. But I think what you're asking is whether judicially enforced rights are diminished when concern for national security increases, and the answer to that question is yes.

Federman: If the war on terror is endless, or no end in sight is foreseeable, what practical measures should Americans undertake to understand the limits and extent of civil liberties? Should we watch what we say?

Posner: As a matter of prudence, yes, because the laws against terrorist crime are very broad, and loose talk about terrorism could result in a prosecution.

Federman: One can make a principled case for torture, even a legal one, as you do. But should something like Alan Dershowitz's warrant for torture – authorities would have to get a judge to approve the use of torture just as they must get a warrant to search someone's home – be used to limit torture's appeal?

Posner: I don't make a legal case for torture. I argue that it should continue to be illegal and I criticize Professor Dershowitz's proposal.

Read more about Posner's Not a Suicide Pact: The Constitution in a Time of National Emergency and about his forthcoming Countering Terrorism: Blurred Focus, Halting Steps.

--Marshal Zeringue