The NY Times book reviewer, Michiko Kakutani, just
savaged Judge Richard Posner’s new book, "
Not a Suicide Pact: The Constitution in a Time of National Emergency."
Although Posner is alleged to have "libertarian" tendencies, his books show the same love of laissez-faire capitalism yoked to authoritarian executive despotism as other faux libertarians like Glenn Reynolds. (These days, a "libertarian" is often a near-fascist who appreciates marijuana and non-marital sex.)
My favorite section of the review is a blatant gotcha, from which Kakutani draws the conclusion that Posner will say pretty much anything in service of his strong-executive principles, even if it isn't logically coherent.
…Judge Posner shrugs off the concern that government scrutiny of private communications could lead to embarrassment, intimidation or blackmail of the administration's opponents. While he acknowledges that "such things have happened in the past," he says that "they are less likely to happen today" because factors like "the growth of a culture of leaking and whistle-blowing" and "more numerous and competitive media" have converged "to make American government a fishbowl," and "secrets concerning matters that interest the public cannot be kept for long."
Later in the book, however, he suggests that people's privacy (regarding information collected by government data mining) would be better protected if there were more restrictions placed on the news media and "the principle of the Pentagon Papers case" were "relaxed to permit measures to prevent the media from publishing properly classified information."
Similarly, Posner is not above disregarding the Constitution completely, apparently under the assumption that no one has ever read
it.
In fact, Judge Posner appears to see the Constitution as a fantastically elastic proposition that can be bent for convenience's sake. "The greater the potential value of the information sought to be elicited by an interrogation," he writes, "the greater should be the amount of coercion deemed permitted by the Constitution. The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach."
To the less-informed mind, one would think the Fifth Amendment and the Eighth Amendment explicitly prohibit just such behavior. It would also, of course, be necessary to withdraw from treaties, such as the International Convention Against Torture, and repeal portions of other laws prohibiting official misconduct to institute such a regime. It's also quite remarkable that the Right has decided that the prohibition of torture is
obsolete. In the history of ideas it is, of course, quite recent. But neither precedent, morality, nor even
efficacy are the issue here. The issue is that post-9/11 even the "intellectuals" of the Right are allowing their ids to run free. As the sheriff puts it in the great
noir movie "Body Heat",
Things are just a little askew. Pretty soon people think the old rules aren't in effect. They start breaking them. Figure no one'll care, cause it's emergency time... time out.