page 2 of 3 of NYT review of Posner's book

BOOKS OF THE TIMES; Constitution Bending: A Jurist's Argument
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By MICHIKO KAKUTANI
Published: September 19, 2006
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.''

Many of Judge Posner's arguments in this book are riddled with
self-serving contradictions. While he declares that ''the Bill of
Rights should not be interpreted so broadly that any measure that does
not strike the judiciary as a sound response to terrorism is deemed
unconstitutional,'' he also argues that ''a constitutional right should
be modified when changed circumstances indicate that the right no
longer strikes a sensible balance between competing constitutional
values, such as personal liberty and public safety.''

In another chapter, which discusses warrantless eavesdropping by the
N.S.A., 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.''

Other arguments in this volume are no more than unsubstantiated --
indeed, highly dubious -- assertions. Judge Posner writes that ''it is
better that the president assume the full responsibility for national
security surveillance than that responsibility be diffused'' by
involving judges because ''when power is concentrated, so is
responsibility'': ''There would be fewer executions,'' he reasons, ''if
the sentencing judge had to administer the lethal injection.''

Judge Posner also insists that there is little reason for the judicial
branch of government to act as a check on presidential overreaching
when national security measures are agreed upon by Congress and the
White House, because the legislative and executive branches ''are
rivalrous even when nominally controlled by the same political party.''
The Republican Congress, he asserts in the face of overwhelming
evidence to the contrary, ''has not been a rubber stamp for the
national security initiatives of the Bush administration.''

By the end of this chilling book, the reader realizes that Judge Posner
is willing to use virtually any argument -- logical or not -- to
redefine constitutionally guaranteed rights like freedom of speech
during wartime. For instance, he expresses irritation with the Supreme
Court's 1969 Brandenburg ruling, which stipulated that speech
advocating violence or other criminal conduct cannot constitutionally
be suppressed unless it is ''directed to inciting or producing imminent
lawless action and is likely to incite or produce such action.''

Although Judge Posner writes that ''in the present circumstances the
enactment of laws forbidding radical Islamist expression would be
needlessly provocative,'' he ominously adds that ''the situation may
change'' and that he believes ''the incitement/threat category could be
expanded'' to include ''generalized advocacy of violence against the
United States.''

In his opinion, he says, ''to tell Congress and the president that they
can do nothing to prevent forms of advocacy likely to multiply the
number of future terrorists makes no more sense than telling them that
they cannot prevent the publication of recipes for bioweapons because
it would probably take years to get from the recipe to the actual
manufacture, let alone use, of the weapons.''

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