Posner v. Stone

This is the second of four posts providing coverage of the panels at this year's Seventh Circuit Bar Association Meeting. It covers the afternoon’s debate between Judge Richard Posner and Professor Geoff Stone on “Constitutional Rights and Other Legal Issues in the War on Terror,” interspersing my notes with materials from the conference supplement and observations from yours truly. In order to make this flow better as a blog post, I’ve taken minor creative liberty with the running order of some of these points.

Richard Posner and Geoff Stone have debated the role of the Fourth Amendment in times of terror so often in the last twelve months, confesses moderator Chief Judge Frank Easterbrook, that he's a little worried that Posner will stand up and say “Speech #5,” to which Stone will rejoin “rebuttal #3.” To set the stage: Stone “consider[s] himself a ‘civil libertarian,’” and “usually argue[s] that restrictions of civil liberties should be a last resort, considered only after we are satisfied that the government that the government has taken all other reasonable steps to keep us safe.”1 Posner, on the other hand, “do[es] not think that ‘restrictions of liberties should be a ‘last resort.’ [He] prefer[s] to see all proposed counterterrorist measures arrayed[] and compared one with the other without a thumb on the scale”2; he “describes [him]self as a ‘pragmatist’ … [and] usually argues that restrictions of civil liberties are warranted whenever the benefit to be derived from those restrictions in terms of increased security ‘outweigh’ the cost to society of limiting the rights.”3

Easterbrook declares that his job on this panel will be to stay out of the way. “In the left corner,” adds referee Easterbrook, by way of introductions, “in the teal shorts - Richard Posner.”

Posner's starting point is that the Constitution is vague and old, and doesn't always map neatly to modern challenges, particularly genuinely new kinds of challenges. The Constitution's restrictions are actually quite fluid, he thinks, because the Supreme Court in a real sense creates a significant fraction of constitutional law, and what it can create it can “uncreate.”4 To cut a long story short, he believes they should do some uncreating.5 Judges face challenges in shaping their response to terrorism: they are often not familiar with the subject matter, and because of the lack of clear precedent, they’re largely writing on a clean slate when defining terrorist detainees’ rights.

Take preventative detention. Other countries allow it6; float the idea here and you run into constitutional objections, says Posner, but he’s not persuaded by those objections. While preventative detention is generally impermissible, we already make exceptions in extraordinary circumstances: for example, we detain the insane if they’re a threat to themselves and others, and of course a suicide bomber also meets that criterion.

The Constitution says nothing about pretrial detention, Posner asserts. I found that a little puzzling – lots of scribbling in marginalia – because the Sixth Amendment quite clearly has things to say about pretrial detention: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ….” To be sure, “speedy” doesn’t mean “immediate,”7 but it seems odd to characterize this as imposing no restraint on government if it intends to criminally prosecute detainees (which seems to be its intent at this time), and if the “war on terror” is in fact a protracted enterprise8 that would seem to bring any prosecution timeframe permissible under the Sixth Amendment to bear sooner or later. Of course, that begs the question of whether we should be prosecuting them in the first place: by its terms, the Sixth Amendment requires only a speedy trial in criminal prosecutions, and thus (contra Posner) would seem very much to restrict pretrial detention while saying nothing to keeping prisoners of war. On the other hand, the idea of keeping prisoners of war for the duration of hostilities begs its own questions when we are “engage[d] in a war on terror that has no clearly defined endpoint,”9 and Posner in any event rejects the notion that we are at war (see part I(b), infra) and thus surely cannot have in mind the PoW paradigm.

Turning to surveillance, Posner says that the Fourth Amendment requires that searches be reasonable, but does not place a similar restriction on warrants: the issuance of a warrant requires “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It doesn’t specify probable cause of what. If you’re investigating a crime, the “what” is pretty obvious, but when you’re trying to stop terrorism, the “what” becomes a little broader, he thinks.10

In sum, the Constitution is protean, as he sees it, and so most of what is done abroad can be done here within the Constitution, albeit not necessarily within existing Constitutional jurisprudence (which, recall, he thinks the court has made, and thus can and presumably should unmake). Unsurprisingly, then, he agrees with Stone that the historical posture of judges has been that the safety of the nation is more important than civil liberties; Lincoln bent the Constitution with his suspension of habeas corpus in order to defend the nation, and in hindsight, that was the correct decision.11 That is, Posner seems to buy enthusiastically into the “[a]re all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?” theory of Presidential adherence to the Constitution.

Posner’s usual refrain is pragmatism and cost-benefit analysis, but he concedes that because we have a knowledge gap – little idea of what to search for – and WMD technology is getting easier to obtain, it’s hard to have a metric in assessing what exactly we’re weighing against civil liberties infringements.12

Judges should defer to legislators and executive branch actors, he thinks, who are usually more expert. But that said, Posner seems to view legislators with a wary eye: in a blog post reproduced in the Conference Supplemental Materials, he observes that not only has “Congressional oversight of intelligence and related national security programs … always been weak,” for that matter, “[C]ongressional oversight of the executive branch is weak in general,” and among members of Congress, “few of them have much knowledge about intelligence.”13 This may all be true, but one is left with the impression that in saying courts should defer to legislators and executive actors, Posner really means they should defer to the executive. Come to think of it, suspend disbelief for a moment: if he doesn’t mean that, why not, given his concession that legislators aren’t necessarily any more competent than judges to evaluate this sort of thing? And in any event, this begs the question of why the principle would apply with any less force to any other area where judges are not expert?

Don’t exaggerate the role of law in fighting terrorism, Posner warns; war vs. crime as competing metaphors are a false dilemma. “War on terrorism” is midleading, but the “law enforcement” approach is wrong too. Posner says that he wouldn’t make “extravagant” claims for executive power.14 While it’s true that the power of the executive expands in proportion to the threat and the scope of military action, war powers don’t apply, in Posner’s view, because as he noted earlier, we aren’t in a war, per se. Once you define war as having a global battlefield, its boundaries evaporate.

If an attack is a tactic, neutralizing the plotters eliminates it, so surveillance and intelligence helps.15 Although that raises questions about the power of the state to conduct such information-gathering, Posner is not troubled by this: he “disagree[s] that comprehensive electronic surveillance, including surveillance of purely domestic phone calls and emails, poses a threat to civil liberties sufficient to outweigh the potential benefits,” which he considers to be “enormous.”16 FISA may not be effective in protecting civil liberties because it’s very deferential in granting warrants, but it’s also cumbersome for government in dealing with a nimble threat. Basically, Posner thinks, it fails on both levels, which leads us to consider alternatives, such as Administrative agency remedies and oversight, an independent watchdog, or possibly to modify plain view doctrine to exempt national security.17 Stone has previously summed up this Royal Guard of paper tigers: “Judge Posner suggests that ‘the essential protection against governmental abuse’ must lie in rules that (a) forbid use of the information ‘other than for national security purposes’ and (b) require oversight by congressional committees and neutral agencies.”18 Yet, as Stone points out, “[r]ecent experience teaches that such safeguards are porous, at best,”19 and Posner’s comments get me scribbling concerns in marginalia. By Posner’s own concession, legislative oversight sounds good but may sound more impressive than it is effective,20 and I would be concerned (although Stone likely would not) that the idea of quasi-autonomous executive branch agencies overseeing such activities – at least, any sufficiently independent to effectively accomplish Posner’s qui custodiet ipsos custodes oversight – would raise unitary executive problems.21

Stone agrees that most constitutional law is judge-made. He suggests that if this were a clean slate, and we were working from first principles, Posner might well be correct: it’d be sensible to assume a highly deferential attitude. Judges are less expert in the questions involved than are executive branch actors and legislators, and for that matter, Judges hesitate to be assertive, especially when the consequences of getting it wrong might be lethal on a massive scale.22 He also concedes that deference has been the normal pattern of behavior in a time of war; in his book War and Liberty, which surveys “how our nation has historically dealt with the challenge of balancing national security against fundamental liberties in wartime,” there emerges “a disturbing pattern of overreaction to dissent, partisan exploitation and manipulation of fear and patriotism, and discriminatory imposition of the hardships of wartime.”23

However, he points out, we don’t have a clean slate. Yes, deference has been the normal pattern of behavior for judges in a time of war, but we now have two centuries of experience in which to see how deference by judges in time of war has panned out. Government always overreacts in a time of crisis, and courts have not met their responsibilities. Nowadays, courts at least want to inquire why the executive wants to use a certain approach, and Stone thinks that’s an improvement.

Stone argues that those who claim that this is the greatest rollback of civil liberties have no sense of perspective24; it’s no such thing, he concedes. The administration’s response has been fairly restrained, certainly in comparison to what we’ve seen before. (Unsurprisingly, Posner shortly registers his agreement with this point.) Nevertheless, the crux of his disagreement with Posner, he thinks, is this: should judges exercise deference in view of the experience of previous crises, and judicial “failure” in those cases. Failure, presumably, means the failure to protect civil liberties, so Korematsu and so forth.

Picking up Posner’s point about prospective detention, Stone adds that what he finds really shocking and dangerous are cases like Padilla: the assertion by the administration of power to seize American citizens on American soil and put them into military custody, indefinitely, incommunicado, and without informing anyone. No access to counsel, no due process, nothing. And all this, Stone frets, at the behest of some faceless administration staffer: this is a huge change, he worries.25 He’s also troubled that the administration went around FISA in secret when there was no need to do so: they could have gone to FISA courts and obtained warrants,26 or for that matter, if that acts provisions ungainly or inefficient, they could have sought amendments to FISA which would likely have been forthcoming.

The worst of it, from his perspective is that all of this needless chicanery has destroyed our reputation as a country that follows due process, a priceless asset that he believes the Bush administration has frittered away.

Easterbrook asks Stone if he could speak specifically to two questions: the treatment of partisans under the Geneva Convention, and the treatment of electronic surveillance, in previous wars. Stone rejoins that such issues wouldn’t have been framed as Constitutional issues in the Second World War because techniques such as phone tapping were not understood to be searches at the time. Nevertheless, he agrees that involving judges (at least, involving them in the manner he thinks judges should involve themselves,which is not necessarily to describe historical practise) would very likely have curtailed use of electronic surveillance and detention in previous wars.

Posner adds that if you’re in a real war, one involving an immediate question of the survival of the nation, that’s where the President’s war powers really start to “click in,” expanding “proportional to the threat.” Until the Keith case,27 he suggests, it was simply assumed by all concerned that the President could wiretap for national security purposes, even in peacetime or the quasi-peacetime situation of the cold war. Should we actually get into something Posner would consider to be a real war, he thinks that there might well be Constitutional problems with FISA.

A questioner from the audience asks: Posner wants us to trust the executive branch, but don’t the recent revelations about how DoJ is being run give him some pause in this? Posner answers that if you slacken the reins, there will of course be abuses; his argument is that it’s a trade-off, and he adverts to his previous suggestions of administrative oversight and remedies. He’s previously suggested departmental inspectors-general as means of overseeing abuses,28 which suggests (to me, at least) that Posner thinks the principle threat from loosening safeguards is unauthorized action by overzealous lackeys, rather than directed action by the executive. The problem I have with this premise (and I’d wager Stone agrees) is the truism that the executive branch is, by the nature of the thing, “tempt[ed] … to test its outer bounds ‘because presidents want to expand their power.’”29

Stone adds that government is inefficient, and courts add a measure of oversight, in that they say to government “you have to justify these measures to somebody.” Wrapping up the debate, Easterbrook notes that science fiction author Robert Heinlein posited that "Governmental competence is the biggest threat to freedom."

I find myself startled to write that I thought Stone had the better of the argument, and thus file a concurrence, if only in the verdict. Posner’s suggestions trouble me on several fronts, and repeatedly found myself scribbling "but..." in the margins of my notes. Readers who just want to know what Stone and Posner said can stop reading here.

Posner suggests that the safety of the nation outweighs civil liberties – he “view[s] the public interest as nearly always overriding the individual’s interest – at least in cases involving Islamic terrorists.”30 But what tethers that principle purely to Islamic terrorism? While it’s undoubtedly true that the war on terrorism poses “a challenge that is unique in American history,”31 one might say the same about the Cold War. Or the Civil War. Or the revolutionary war. Every “national crisis poses unique challenges.”32 Of course, those challenges were different, but that is, definitionally, in the nature of a unique challenge, and the uniqueness of this challenge should not blind us to the scale of previous challenges, each themselves unique and uniquely challenging at the time. I tend to think that Justice Scalia has it right insofar as “[i]t seems to me that the purpose of the Bill of Rights was to prevent change, not to encourage it” - that is, its purpose was precisely to ensure that government couldn’t use “unique circumstances” as an opportunity to clamp down on those liberties protected by the bill of rights.

Posner believes that “[c]ivil liberties are valuable, but their values should be assessed in a practical, hard-headed way, rather than treated with quasi-religious veneration.”33 I have no issue with that, to the extent that we are talking only about liberties not protected by the bill of rights, of which (for those of us who have not insisted on constitutionalizing every trivial issue) there are many. However, once we move into that zone of protection, Posner’s is the kind of thinking that leads to cases like Maryland v. Craig and Hamdi v. Rumsfeld, the thinking that has animated the dissenters in the Apprendi line of cases. While I can largely agree with Stone that “Constitutional rights are not absolute,” that it sometimes becomes necessary to “balance the degree of limitation of the right against the strength and nature of the competing government interests[,] … [and] if the stakes are sufficiently high, even rights we ordinarily protect can legitimately be limited,”34 civil liberties are one thing; constitutionally-protected liberties are quite another. A judicial gloss on the Fourth Amendment may be set aside; the core protections of the Fourth Amendment, once identified as such, may not.

Worse yet is the principle that animates these desired points of departure. What bothers me is that this principle – that Constitutional limits should bend or yield to unique exigencies and challenging situations35 – seems illimitable. Consider global warming: is that not also “a challenge that is unique in American history”? Earlier this year, former Vice-President Al Gore testified before the Senate Environment & Public Works Committee that climate change “is a planetary emergency—a crisis that threatens the survival of our civilization and the habitability of the Earth.” If we can justify setting aside constitutional limitations on government action to deal with a global problem, particularly focussed on America, why can't setting aside constitutional limitations to address a global emergency be justified? That is, if surveillance for terrorism, why not surveillance for eco-terrorism (as failure to recycle used to be known among the non-cognoscenti)? There are, undoubtedly, those who would answer that those limitations should be waived, but I rather suspect they are the same people who fret about the sort of transgressions urged by Posner. Justice Black argued that "[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution"36; Judge Posner would transform this creature into a Frankenstein's monster at the approach of unique challenges or crises, lopping off inconvenient limb-itations and discovering precisely the alternative source of authority that eluded Justice Black in David Hume's theory that "[t]he safety of the people is the supreme law[,] [and] [a]ll other laws" - even the Constitution of the United States, Posner would have us believe - "are subordinate to it."37

On the other hand, while I agree with Stone’s conclusions, I reach those conclusions from the standpoint of a legal formalist,38 while Stone reaches them with apparent alarm at the result, not the theory that produced it. Here, the seductive whisper of schadenfreude is irresistible; “Judge Posner’s statement [in Not a Suicide Pact] that ‘constitutional law is fluid, protean, and responsive to the flux and pressure of contemporary events’ sounds much like Justice William Brennan’s constitutional philosophy.”39 So it does; and Stone is of course a former clerk to Justice Brennan. For living constitutionalists now to express concern over such matters seems to recall the warning that “whatsoever a man soweth, that shall he also reap.”40 Throughout Posner’s comments, I had in mind Justice Scalia’s frequent admonition that the problem with desiring an evolving Constitution is that you can't be sure that you'll get an evolving constitution, in the sense of “human progress [a]s one upwardly inclined plane[,] [wherein] every day and every way we get better and better”; you can only be sure that it will change, and that the changing will be done by judges – judges like Posner – who may well expand its protections sometimes, but may also narrow them.

In short – we told you so.

Post facto:
Reinhardt on Posner on civil liberties in the era of permanent war (5/25/08)
Ten things that aren't changing (11/5/08)

1. 1. "Not a Suicide Pact": Round One, Posting of Geoffrey Stone to Univ. of Chi. Law School Faculty Blog (Sept. 21, 2006, 15:58 EST) at 1 (all page citations to this post hereinafter given as reproduced in Conf. Supp.). In both this blog post and that cited in note 10, infra, the post by Stone contains both a comment by stone and a response by Posner. Where citations hereinafter to these posts refer to Posner's response rather than Stone's comments, they are so designated.
2. 2. Id. at 3 (response by Posner).
3. 3. Id. at 1.
4. 4. “‘[B]ecause the Constitution is extremely difficult to amend, the pressure on the Supreme Court to interpret it loosely so as to keep it up to date is acute, in fact irresistible.’” Jarrod Stuard, reviewing Posner, Not a Suicide Pact (quoting same), 39 N.Y.U. J. of INT’L. L. & POL. 504 (2006). Regular readers will be able to guess what I think about that.
5. 5. But not too much. See Emily Bazelon, Maximum Security in The New York Times, 11/10/2006 (reviewing Posner, Not a Suicide Pact) (“[w]hat governmental powers does [Posner] think should be curtailed under the Constitution? As it turns out, he wants to hold on to quite a lot of the status quo”).
6. 6. For example, as Ann’s notes remind me, the British allow twenty-eight days of detention, incommunicado (including from counsel), but with judicial supervision.
7. 7. United States v. Ewell, 383 U.S. 116 (1966).
8. 8. Newt Gingrich has suggested that it could take fifty years or more, and I don’t think that’s an extravagant estimate.
9. 9. Susan Bandes, Our National Crises, Overreaction and Regret in 153 CHICAGO DAILY LAW BULLETIN No. 82, 4/25/2007, at 2 (as reproduced in Conf. Supp.).
10. 10. Cf. "Not a Suicide Pact": Round Two, posting of Geoffrey Stone to Univ. of Chi. Law School Faculty Blog (Sept. 22, 2006, 18:00 EST) at 2 (all page citations to this post hereinafter given as reproduced in Conf. Supp.) (“there is a compelling need for some form of surveillance that is broader than what would be permissible under a strict probable cause regime”).
11. 11. But see Bazelon, supra note 5, at 1 (as reproduced in Conf. Supp.) (noting that in citing Lincoln’s suspension of habeas corpus, Posner neglects to mention that “Lincoln issued his suspension order when Congress was in recess, and sought approval for it upon [Congress’] return to Washington”).
12. 12. Hard, but apparently not impossible for Posner. In at least one characterization, his book, "without citing much evidence[,] argues that in the war on terrorism, cost-benefit analysis almost always favors the Government's preferred approach." Margaret Stock, Book Review: Posner, Not a Suicide Pact, 8 ENGAGE No. 1 at 152 (as reproduced in Conf. Supp.).
13. 13. Stone, supra note 10, at 4 (response by Posner).
14. 14. Presumably in contrast to John Yoo, whose interpretation of those powers Posner has called “‘an extravagant interpretation of Presidential authority [that] confuses commanding the armed forces with exercising dictatorial control over the waging of war….’” Stock, supra note 12, at 152 (quoting Posner, Not a Suicide Pact); Bazelon, supra note 5 (same).
15. 15. Cf. Stone, supra note 1 (“advance information and identification of potential terrorists” – potential terrorists, it should be emphasized that Stone concedes here, not merely confirmed terrorist plotters – “is critical. That inevitably leads to surveillance. The single best way to protect ourselves against such attacks is to identify the terrorists and disrupt their plans before they can act”).
16. 16. Id. (Response of Posner).
17. 17. In Stone, supra note 10, Posner cited Orin Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005) for this proposal.
18. 18. Stone, supra note 10, at 1
19. 19. Ibid.
20. 20. See text accompanying note 13, supra.
21. 21. In my view, “[t]he Constitution requires that the President must retain ultimate authority over all executive branch activity[.] ... Executive branch actors are intermediaries for the executive power, and surrogates for the President in whom that power is vested by the Constitution.”
22. 22. I don’t have much sympathy for non-formalists on this concern for the assertiveness of judges in awkward times. See Antonin Scalia, The Rule of Law as a Law of Rules, 6 U. Chi. L. Rev. 1175, __ (1989):

    While announcing a firm rule of decision can … inhibit courts, strangely enough it can embolden them as well. Judges are sometimes called upon to be courageous, because they must sometimes stand up to what is generally supreme in a democracy: the popular will. Their most significant roles, in our system, are to protect the individual criminal defendant against the occasional excesses of that popular will, and to preserve the checks and balances within our constitutional system that are precisely designed to inhibit swift and complete accomplishment of that popular will. Those are tasks which, properly performed, may earn widespread respect and admiration in the long run, but -- almost by definition -- never in the particular case. The chances that frail men and women will stand up to their unpleasant duty are greatly increased if they can stand behind the solid shield of a firm, clear principle enunciated in earlier cases.

23. 23. Bandes, supra note 9.
24. 24. Cf. Christopher Hitchens, Perilous Times in The New York Times, 11/7/2004 (reviewing Stone, Free Speec in Wartime) at 1 (as reproduced in Conf. Supp.) (“I have heard serious people describe the reign of our pious present Attorney General [John Ashcroft] as fascistic. Given that jihadist armedforces could still be in our midst, that might be looking for fascism in all the wrong places”).
25. 25. This is not a point where he and Posner wholly disagree. Posner “dismisses … the idea of an alternative to traditional habeas corpus proceedings for suspected terrorists, arguing that civilian courts should decide in the first instance whether someone is an enemy combatant subject to trial by military tribunal.” Stock, supra note 12.
26. 26. This noticeably fails to engage Posner’s point that FISA may be too ungainly to effectively counter a nimble threat; there is surely a counterargument to be made, but Stone doesn’t offer one here.
27. 27. United States v. U.S. District Court, 407 U.S. 297 (1972).
28. 28. Stone, supra note 10, at 3 (response by Posner).
29. 29. Bazelon, supra note 5 (quoting Posner, Not a Suicide Pact).
30. 30. Stock, supra note 12, at 152.
31. 31. Stone, supra note 1.
32. 32. Bandes, supra note 9.
33. 33. Stone, supra note 1 (response by Posner).
34. 34. Stone, supra, note 1 (internal quotation marks omitted).
35. 35. Cf. Ann Althouse, The Vigor of the Anti-Comandeering Doctrine in Times of Terror, 69 Brook. L. Rev. 1231 (2004) (arguing that “[b]ecause state and local government autonomy can work as a safeguard for the rights of the people, the anti-commandeering doctrine should remain in place, in full force, unmodified by any sort of emergency exception,” and that, contra Posner, courts should not surrender structural doctrines to present exigencies, “should continue to resist the temptation to adopt an expedient solution to the crisis of the day” (internal quotation marks omitted)).
36. 36. Reid v. Covert, 354 U.S. 1, 5-6 (1957).
37. 37. Stone, supra note 1 (response by Posner).
38. 38. It’s important so to say. See Lawrence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights at 165-6.
39. 39. Stock, supra note 12, a 153.
40. 40. Galatians 6:7