> page 2 of 3 of NYT review of Posner's book
>
> BOOKS OF THE TIMES; Constitution Bending: A Jurist's Argument
> Print Single-Page Save
>
> 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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> Robert Cohen wrote:

>> page 1 of 3 of NYT book review
>>
>> BOOKS OF THE TIMES; Constitution Bending: A Jurist's Argument
>> Print Single-Page Save
>>
>> By MICHIKO KAKUTANI
>> Published: September 19, 2006
>>
>> Not a Suicide Pact
>> The Constitution in a Time of National Emergency
>> By Richard A. Posner
>> 171 pages. Oxford University Press. $18.95.
>>
>>
>> Citing national security concerns in the wake of the terrorist attacks
>> of Sept. 11, the Bush administration has repeatedly sought to expand
>> presidential power, often doing so in secret and sidelining both
>> Congress and the judiciary.
>>
>> President Bush secretly authorized the National Security Agency, in
>> search of evidence of terrorist activity, to eavesdrop on Americans
>> without obtaining a court-approved warrant. The administration claimed
>> that the president's war powers gave him the authority to detain people
>> indefinitely and deny them access to lawyers and the courts -- a policy
>> it would later have to modify in response to challenges in the courts.
>> And it pursued a plan to put detainees held at Guantánamo Bay on trial
>> before military commissions, a plan that the Supreme Court in June said
>> violated United States law and the Geneva Conventions.
>>
>> The Bush administration's assertion that the war on terror is a new
>> kind of war requiring new rules and a new equation between liberty and
>> security is vehemently echoed by Richard A. Posner's alarming new book,
>> ''Not a Suicide Pact: The Constitution in a Time of National
>> Emergency.''
>>
>> In addition to being a judge on the United States Court of Appeals for
>> the Seventh Circuit, Judge Posner is a prolific author, a lecturer at
>> the University of Chicago Law School and an intellectual leader of a
>> school of jurisprudence that has pioneered the use of economics to
>> analyze legal issues. He is known for his willfully provocative
>> opinions -- he once co-wrote an article recommending the private sales
>> of babies -- and the positions he takes in this volume will not only
>> fuel his own controversial reputation but also underscore just how
>> negotiable constitutional rights have become in the eyes of
>> administration proponents, who argue that the dangers of terrorism
>> trump civil liberties.
>>
>> The very language Judge Posner uses in this shrilly titled volume
>> conveys his impatience with constitutional rights, while signaling his
>> determination to deliver a polemical battle cry, not a work of
>> carefully reasoned scholarship. He writes about lawyers' ''rights
>> fetishes,'' complains about judges' ''thralldom to precedent'' and
>> declares that the absence of an Official Secrets Act -- which could be
>> used to punish journalists for publishing leaked classified material --
>> reflects ''a national culture of nosiness, and of distrust of
>> government bordering on paranoia.''
>>
>> Near the beginning of ''Not a Suicide Pact'' Judge Posner writes that
>> ''rooting out an invisible enemy in our midst might be fatally
>> inhibited if we felt constrained to strict observance of civil
>> liberties designed in and for eras in which the only serious internal
>> threat (apart from spies) came from common criminals.''
>>
>> He argues that ''it would be odd if the framers of the Constitution had
>> cared more about every provision of the Bill of Rights than about
>> national and personal survival.'' And he concludes that ''the
>> importance of demonstrating resolve at the outset of a grim struggle
>> explains and to a degree justifies the excesses of repression that so
>> often accompany our entry into war, including the war against Al
>> Qaeda.''
>>
>> This willingness to bend the Constitution reflects Judge Posner's
>> archly pragmatic approach to the law and his penchant for eschewing
>> larger principles in favor of utilitarian, cost-benefit analysis.
>> Efficiency, market dynamics and short-term consequences are what
>> concern Judge Posner, not enduring values or legal precedents.
>>
>> One result is a depressing relativism in which there are no higher
>> ideals and no absolute rights worth protecting. It is a distinctly
>> cynical outlook that imputes the most mercenary of motives to everyone
>> from journalists to judges: just as Judge Posner has asserted that the
>> media merely pander to the demands of their audiences rather than
>> striving to inform the public, so he suggests in these pages that
>> justices simply ''make up constitutional law as they go along,''
>> following subjective criteria instead of striving to uphold principle
>> and precedent.
>>
>> 1 2 3 Next Page >
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>>
>> Robert Cohen wrote:

>>> I did not write this book, nor have I been elected to public office,
>>> thank the deit(y)ies.
>>>
>>> Because I am linking it does not necessarily mean that I whole hog
>>> endorse it gung ho one hundred percent completely.
>>>
>>> However, I have previously conceded that I'm pragmatic, compromising,
>>> hopefully adaptive and certainly NOT a Constitutional
>>> literalist/fundamentalist of which I've previouswly explained to my
>>> fool & full capacity.
>>>
>>> The true fact of the @#$%%^&*() troubling matter is I can't decide,
>>> and thus merely wanted to herein play the provoking/advocating devil:
>>>
>>> I take it (I perceive) many others are in the same dilemmical gray area
>>> ditto, though would not articulate it in the semi-articulate way I do
>>> herein:
>>>
>>> From: Robert Cohen - view profile
>>> Date: Sat, Sep 23 2006 7:02 pm
>>> Email: "Robert Cohen" msn.com>
>>> Groups: alt.philosophy.law
>>> Not yet ratedRating:
>>> show options
>>> Reply | Reply to Author | Forward | Print | Individual Message | Show
>>> original | Remove | Report Abuse | Find messages by this author
>>>
>>>
>>> Judge Richard Posner has such a book that tends to back GWB's position.
>>>
>>>
>>> I am not sure enough to know what I'd do, so be glad you didn't vote
>>> for me, because I'd likely candidly talk of malaise
>>>
>>>
>>> Meanwhile, I saw today a review of Posner's book in the NEW YORK TIMES,
>>>
>>> and will try to link and ink it here some.
>>>
>>>
>>> Your keen insight or ignorant rant is semi-welcome too of course.
>>>
>>>
>>> And, hey, the USA is both a constitutional democracy AND a republic.
>>>
>>>
>>> Well, imho, all
>>> those State referenda sorta make it also a "democracy."
>>>
>>>
>>> Reply »
>>>
>>> 2 From: Robert Cohen - view profile
>>> Date: Sun, Sep 24 2006 11:15 am
>>> Email: "Robert Cohen" msn.com>
>>> Groups: alt.philosophy.law
>>> Not yet ratedRating:
>>> show options
>>> Reply | Reply to Author | Forward | Print | Individual Message | Show
>>> original | Remove | Report Abuse | Find messages by this author
>>>
>>>
>>> Here's some description, thesis, precis & critiques of Posner's pov:
>>>
>>> http://www.amazon.com/Not-Suicide-Pact-Constitution-Inalienable/dp/01...
>>>
>>>
>>>
>>>
>>> - Hide quoted text -
>>> - Show quoted text -
>>>
>>> Robert Cohen wrote:

>>>> Judge Richard Posner has such a book that tends to back GWB's position.

>>>

>>>> I am not sure enough to know what I'd do, so be glad you didn't vote
>>>> for me, because I'd likely candidly talk of malaise

>>>
>>>

>>>> Meanwhile, I saw today a review of Posner's book in the NEW YORK TIMES,
>>>> and will try to link and ink it here some.

>>>
>>>

>>>> Your keen insight or ignorant rant is semi-welcome too of course.

>>>
>>>

>>>> And, hey, the USA is both a constitutional democracy AND a republic.

>>>
>>>

>>>> Well, imho, all
>>>> those State referenda sorta make it also a "democracy."

>>>
>>>
>>>
>>> Reply »
>>>
>>>
>>> « Start of topic « Older Messages 1 - 2 of 2 Newer » End of
>>> topic »
>>> « Newer topic - Separation between church and state: Is that what
>>> the founding fathers intended? Hello finishing wood 671 - Older
>>> topic »
>>>
>>> ©2006 Google
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> Bret Cahill wrote:

>>>> I got this from Harry Hope on alt.politics . . .
>>>>
>>>>
>>>> Bret Cahill
>>>>
>>>>
>>>>
>>>>
>>>> ~~~~~~~~~~~~~~~~~~~~~~~~
>>>>
>>>>

>>>>>From The Associated Press, 9/29/06:

>>>> http://www.forbes.com/business/commerce/feeds/ap/2006/09/29/ap3055270...
>>>>
>>>>
>>>>
>>>> Associated Press
>>>>
>>>>
>>>> Gonzales Cautions Judges on Interfering
>>>>
>>>>
>>>> By MICHAEL J. SNIFFEN
>>>>
>>>>
>>>> Attorney General Alberto Gonzales, who is defending President Bush's
>>>> anti-terrorism tactics in multiple court battles, said Friday that
>>>> federal judges should not substitute their personal views for the
>>>> president's judgments in wartime.
>>>>
>>>>
>>>> He said the Constitution makes the president commander in chief and
>>>> the Supreme Court has long recognized the president's pre-eminent role
>>>> in foreign affairs.
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> SIEG HEIL!!
>>>>
>>>>
>>>> Harry