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ليس وثيقة انتحار: الدستور في زمن الطوارئ القومية
يؤدي الدستور مهمَّة أساسيَّة في حماية الحقوق الفردية من الانتهاك، ولكنه ليس وثيقة انتحار. يسلِّط هذا الكتاب الضوءَ على الأسباب التي دعت إلى وجود هذا الحق أو ذاك من الحقوق في الدستور، وما الأسباب التي دعت لبقائه، كما يناقش المشكلات والمخاطر الأمنية التي تكتنف الحريات التي طالما حافظ عليها الدستور.
ويناقش المؤلّف القضايا الدستورية التي تصدر عن سياساتٍ تثير الجدل، مثل: احتجاز الأفراد وتعذيبهم، والبحث عن البيانات وتمحيصها، والتنصّت على المكالمات الهاتفية، وغيرها من وسائل الاتصالات. ويرى ضرورة تعديل الحريات لتتوافق مع الظروف، وكذلك يوصي بإيجاد توازنٍ بين الحريات الشخصية والأمن العام، ويدافع عن رأيٍ مؤداه أننا إن لم نسمح بقدرٍ من المرونة في تعاملنا مع الدستور، فإنه سيسقط في نهاية الأمر.
ريتشارد بوزنر: أستاذ القانون بجامعة شيكاغو، وقاضٍ بالمحكمة الفدرالية الأمريكية. من أعماله: "كيف يفكّر القضاة؟" (2008م)، و"فشل الرأسمالية" (2008م).
ويناقش المؤلّف القضايا الدستورية التي تصدر عن سياساتٍ تثير الجدل، مثل: احتجاز الأفراد وتعذيبهم، والبحث عن البيانات وتمحيصها، والتنصّت على المكالمات الهاتفية، وغيرها من وسائل الاتصالات. ويرى ضرورة تعديل الحريات لتتوافق مع الظروف، وكذلك يوصي بإيجاد توازنٍ بين الحريات الشخصية والأمن العام، ويدافع عن رأيٍ مؤداه أننا إن لم نسمح بقدرٍ من المرونة في تعاملنا مع الدستور، فإنه سيسقط في نهاية الأمر.
ريتشارد بوزنر: أستاذ القانون بجامعة شيكاغو، وقاضٍ بالمحكمة الفدرالية الأمريكية. من أعماله: "كيف يفكّر القضاة؟" (2008م)، و"فشل الرأسمالية" (2008م).
208 pages, Paperback
First published January 1, 2006
7 people are currently reading
220 people want to read
About the author
Richard A. Posner
130 books181 followersRichard Posner is Senior Lecturer in Law at the University of Chicago Law School.
Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit, where he presided until his retirement on September 2, 2017. He was the chief judge of the court from 1993 to 2000.
Judge Posner has written a number of books, including Economic Analysis of Law (7th ed., 2007), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), and A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press. He has taught administrative law, antitrust, economic analysis of law, history of legal thought, conflict of laws, regulated industries, law and literature, the legislative process, family law, primitive law, torts, civil procedure, evidence, health law and economics, law and science, and jurisprudence. He was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. He is an Honorary Bencher of the Inner Temple and a corresponding fellow of the British Academy, and he was the President of the American Law and Economics Association from 1995 to 1996 and the honorary President of the Bentham Club of University College, London, for 1998. He has received a number of awards, including the Thomas Jefferson Memorial Foundation Award in Law from the University of Virginia in 1994, the Marshall-Wythe Medallion from the College of William and Mary in 1998, the 2003 Research Award from the Fellows of the American Bar Foundation, also in 2003 the John Sherman Award from the U.S. Department of Justice, the Learned Hand Medal for Exellence in Federal Jurisprudence from the Federal bar Council in 2005, and, also in 2005, the Thomas C. Schelling Award from the John F. Kennedy School of Government at Harvard University.
Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit, where he presided until his retirement on September 2, 2017. He was the chief judge of the court from 1993 to 2000.
Judge Posner has written a number of books, including Economic Analysis of Law (7th ed., 2007), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), and A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press. He has taught administrative law, antitrust, economic analysis of law, history of legal thought, conflict of laws, regulated industries, law and literature, the legislative process, family law, primitive law, torts, civil procedure, evidence, health law and economics, law and science, and jurisprudence. He was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. He is an Honorary Bencher of the Inner Temple and a corresponding fellow of the British Academy, and he was the President of the American Law and Economics Association from 1995 to 1996 and the honorary President of the Bentham Club of University College, London, for 1998. He has received a number of awards, including the Thomas Jefferson Memorial Foundation Award in Law from the University of Virginia in 1994, the Marshall-Wythe Medallion from the College of William and Mary in 1998, the 2003 Research Award from the Fellows of the American Bar Foundation, also in 2003 the John Sherman Award from the U.S. Department of Justice, the Learned Hand Medal for Exellence in Federal Jurisprudence from the Federal bar Council in 2005, and, also in 2005, the Thomas C. Schelling Award from the John F. Kennedy School of Government at Harvard University.
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Displaying 1 - 17 of 17 reviews
July 16, 2024
"This is a book about law, and so it is for lawyers; it is about national security, and so it is for students of national security and members of the national security community who are not lawyers. But it is also a book for the general reader. The issues it covers are important to all Americans..." (Introduction)
There is so much to unpack in this short book, and it is far from an easy read for the general reader. It's complicated and wordy, but there is a lot to glean from it.
I did find it comical to read this line: "imagine strict quarantining and compulsory vaccination in response to a pandemic..." Imagine that...
There is so much to unpack in this short book, and it is far from an easy read for the general reader. It's complicated and wordy, but there is a lot to glean from it.
I did find it comical to read this line: "imagine strict quarantining and compulsory vaccination in response to a pandemic..." Imagine that...
September 10, 2012
I have to throw in a hasty review, ill-equipped though I am at the moment, lest some take this to be purely reactionary to civil libertarians, harsh though he is on their case. This is along the lines of a thoughtful approach to a more fluid realm of law than histrionics suggest, seen at the lawfareblog.com, which I encountered after reading the highly relevant article by Benjamin Wittes at http://www.hoover.org/publications/de.... Posner posited in several ways that there's a certain give-take relationship, depending on exigencies in a nation's history, and that where the system itself is not compromised, the balances tend to take effect according to need. To the extent that he did treat liberty and security as ends of a scale, he cautioned against throwing false positives and negatives into it, or rashly concluding that officials are always only expanding their own powers and that the action of a moment will never be corrected by later intelligence.
Posner did not, in fact, propose anything unconstitutional, or advocate illegality, but rather was pushing back on highly ideological, fixed definitions/interpretations thereof rendering decisions impossible. (And he took libertarians' understanding of history, as on 42-47, to task more than once while doing so. I have to say that I can't agree with all of his specifics throughout the book, but I really enjoyed his exposure of the main reasons I can't be libertarian.) One of his more interesting expositions was on the degree to which coercion approaches torture, and the actual purposes of extracting information, when not done for false incrimination or or intent to prosecute, but solely to advance a short-term security objective (which by its very nature requires speed and secrecy). Again, he recognized, on 63, the special needs requirement to even bring about such detention. He maintained that "ordinary crime does not imperil national security; modern terrorism does, so the government's burden of proof should be lighter, though how much lighter is a matter of judgment" (65), and (66-67) "no explicit constitutional text or precedent blocks the suggested resolution of the dilemma of what to do with terrorist suspects. . . . Some enemy combatants captured in the campaign in Afghanistan and detained at the U.S. military prison at Guantanamo Bay without criminal proceedings being instituted have been released only to be found later fighting the United States in Iraq or Afghanistan. If a judge is convinced that the individual detained is a terrorist, this should be enough to justify the individual's continued detention, much as if he were a prisoner of war."
So, in a spirit not true to reviewing, per se, I'm slapping down a few quick quotations to more fairly show the extreme arguments he's demolishing. For starters, I've had a few friends try debating with more strident camps who feel that liberty is the ultimate, only, and greatest good, as though nothing else competes or lends meaning to it. Posner (31-34): "One is not to ask whether liberty is more or less important than safety. One is to ask whether a particular security measure harms liberty more or less than it promotes safety. . . . Rules, especially ones that allow of no exceptions, are simpler to apply than standards. But by making the outcome of a case depend on one or a few facts . . . rather than on all the relevant circumstances . . ., rules often make a poor fit. . . . [Civil libertarians] worry that standards will give the judges too much latitude . . . . But they want the rule to be based on liberty and only the exception on safety."
41: You marry without being able to determine whether you might have met someone more suitable had you forgone this match. Many marriages fail, of course, and many judgments regarding the scope of civil liberties in times of national emergency are unsound. But we cannot avoid making such judgments and there is no good alternative to making them pragmatically.
44 (see 92), 96: Because terrorist attacks are potentially so destructive and also because many terrorists are undeterrable, the emphasis of public policy shifts from punishment after an attack occurs to preventing it from occurring. . . . A limitation to completed acts of terrorism, however, would make the criminal law an even less adequate response to terrorism than it is. . . . When a crime is committed, the authorities usually have a lot of information right off the bat--time, place, victims, maybe suspects--and this permits a focused investigation that has a high probability of eventuating in an arrest. Not so with national security intelligence, where the investigator has no time, place, or victim and may have scant idea of the enemy's identity and location; hence the need for the wider, fine-meshed investigative net. . . . [T]he most that counterterrorist intelligence can hope to achieve is to impose costs on enemies of the nation . . . in the hope of disrupting their plans. It is mistaken to think electronic surveillance a failure if it doesn't intercept a message giving the time and place of the next attack.
132: Civil libertarians want government to be transparent but private individuals to be opaque; national security hawks want the reverse. People hide from the government, and government hides from the people, and both the people and the government have both good and bad reasons for hiding from the other. Complete transparency paralyzes planning and action; complete opacity endangers both liberty and security. Terrorists know this best. Eavesdropping imposes costs on innocent people because their privacy is compromised, but the costs it imposes on terrorists are even steeper because it thwarts their plans utterly and places them at risk of capture or death. Of course, from our standpoint as a people endangered by terrorism, the higher those costs the better.
148-149: Civil libertarians should value safety not only for its intrinsic merits but also because a terrorist attack or other national security crisis incites curtailments of civil liberties. National security experts should value civil liberties not only for their intrinsic value, and not only because civil liberties abuses could cause disaffection among members of communities whose loyalty to the nation is at once vital and perhaps precarious, but also because civil liberties reinforce the separation of powers by limiting the discretion of the executive branch. . . . Civil liberties and constitutional rights tend to be discussed in the same breath, but they are not synonyms. Civil liberties are shaped by statutes, regulations, and the discretionary judgments of law enforcement and national security personnel as well as by courts in the name of the Constitution.
Posner did not, in fact, propose anything unconstitutional, or advocate illegality, but rather was pushing back on highly ideological, fixed definitions/interpretations thereof rendering decisions impossible. (And he took libertarians' understanding of history, as on 42-47, to task more than once while doing so. I have to say that I can't agree with all of his specifics throughout the book, but I really enjoyed his exposure of the main reasons I can't be libertarian.) One of his more interesting expositions was on the degree to which coercion approaches torture, and the actual purposes of extracting information, when not done for false incrimination or or intent to prosecute, but solely to advance a short-term security objective (which by its very nature requires speed and secrecy). Again, he recognized, on 63, the special needs requirement to even bring about such detention. He maintained that "ordinary crime does not imperil national security; modern terrorism does, so the government's burden of proof should be lighter, though how much lighter is a matter of judgment" (65), and (66-67) "no explicit constitutional text or precedent blocks the suggested resolution of the dilemma of what to do with terrorist suspects. . . . Some enemy combatants captured in the campaign in Afghanistan and detained at the U.S. military prison at Guantanamo Bay without criminal proceedings being instituted have been released only to be found later fighting the United States in Iraq or Afghanistan. If a judge is convinced that the individual detained is a terrorist, this should be enough to justify the individual's continued detention, much as if he were a prisoner of war."
So, in a spirit not true to reviewing, per se, I'm slapping down a few quick quotations to more fairly show the extreme arguments he's demolishing. For starters, I've had a few friends try debating with more strident camps who feel that liberty is the ultimate, only, and greatest good, as though nothing else competes or lends meaning to it. Posner (31-34): "One is not to ask whether liberty is more or less important than safety. One is to ask whether a particular security measure harms liberty more or less than it promotes safety. . . . Rules, especially ones that allow of no exceptions, are simpler to apply than standards. But by making the outcome of a case depend on one or a few facts . . . rather than on all the relevant circumstances . . ., rules often make a poor fit. . . . [Civil libertarians] worry that standards will give the judges too much latitude . . . . But they want the rule to be based on liberty and only the exception on safety."
41: You marry without being able to determine whether you might have met someone more suitable had you forgone this match. Many marriages fail, of course, and many judgments regarding the scope of civil liberties in times of national emergency are unsound. But we cannot avoid making such judgments and there is no good alternative to making them pragmatically.
44 (see 92), 96: Because terrorist attacks are potentially so destructive and also because many terrorists are undeterrable, the emphasis of public policy shifts from punishment after an attack occurs to preventing it from occurring. . . . A limitation to completed acts of terrorism, however, would make the criminal law an even less adequate response to terrorism than it is. . . . When a crime is committed, the authorities usually have a lot of information right off the bat--time, place, victims, maybe suspects--and this permits a focused investigation that has a high probability of eventuating in an arrest. Not so with national security intelligence, where the investigator has no time, place, or victim and may have scant idea of the enemy's identity and location; hence the need for the wider, fine-meshed investigative net. . . . [T]he most that counterterrorist intelligence can hope to achieve is to impose costs on enemies of the nation . . . in the hope of disrupting their plans. It is mistaken to think electronic surveillance a failure if it doesn't intercept a message giving the time and place of the next attack.
132: Civil libertarians want government to be transparent but private individuals to be opaque; national security hawks want the reverse. People hide from the government, and government hides from the people, and both the people and the government have both good and bad reasons for hiding from the other. Complete transparency paralyzes planning and action; complete opacity endangers both liberty and security. Terrorists know this best. Eavesdropping imposes costs on innocent people because their privacy is compromised, but the costs it imposes on terrorists are even steeper because it thwarts their plans utterly and places them at risk of capture or death. Of course, from our standpoint as a people endangered by terrorism, the higher those costs the better.
148-149: Civil libertarians should value safety not only for its intrinsic merits but also because a terrorist attack or other national security crisis incites curtailments of civil liberties. National security experts should value civil liberties not only for their intrinsic value, and not only because civil liberties abuses could cause disaffection among members of communities whose loyalty to the nation is at once vital and perhaps precarious, but also because civil liberties reinforce the separation of powers by limiting the discretion of the executive branch. . . . Civil liberties and constitutional rights tend to be discussed in the same breath, but they are not synonyms. Civil liberties are shaped by statutes, regulations, and the discretionary judgments of law enforcement and national security personnel as well as by courts in the name of the Constitution.
June 30, 2022
Posner articulates the typical American judicial pragmatism in the context of national security. His attitude toward the US constitution is sober and dispassionate — expected from a seasoned judge. His arguments are long-winding and often hard to follow, probably the side-effect of his judgment writing experience. Good book nonetheless. Privacy and liberty are illusions, so is security. Better safe with pragmatism than risk harm with idealism. I must agree with him on that. The world is becoming a crazy place to live in.
September 9, 2020
Posner writes so well. But I still think Edward Snowden did a noble thing, and I think qualified immunity should be curtailed (Posner ponders on its expansion). I guess my biggest problem with his arguments in this book is the hand-waving over whether information is used correctly. Given that there are known situations of personal information being accessed for unapproved methods, you'd have to get that under control before you started expanding the reach of information-gathering agencies.
March 25, 2019
Despite the philosophical disagreement with some of Judge Posner's arguments, this book was a pleasant one to read.
January 27, 2008
Judge Posner changed my mind about ensuring all traditional civil liberties for alleged terrorists. The most resonant argument he makes is that there should be a wrenching open of the current strict dichotomy of "crime" and "war" when prosecuting suspected terrorists. There is a gray area, and we, as legal minds need to adapt to the new environment rather than attempting to force Padilla, Hamdi, Hamdan etc into the "crime" and "war" boxes.
Judge Posner is clear and concise author who does not attempt to gloss over opposing arguments with a quick swish-swish of the hand (like his son Eric A. Posner does). Instead Judge Posner lays it all on the line. Whoever thought that I would be in favor of curtailing the legally recognizable rights of human beings? Not me...definitely not my husband...but alas, look what has happened.
We must understand, Judge Posner asserts, that there is a balance with national security on the one hand, and civil liberties on the other. There is a point where you take away a certain amount of liberty, and there must be a corresponding increase in national security. The problem occurs when you take away some liberties and there is only an incrementally small increase in our security.
Civil libertarians tend to get all antsy in our pantsies when the government starts talking about curtailing the legal rights of Group X. But I do think in today's world with communication technologies that can allow instant notification of infiltration of a terrorist organization, we need to understand that we cannot try suspected terrorists in the typical criminal court system. National security IS important. Temporary detentions beyond the usually short time periods must be allowed in order to gain valuable information or attempt to "turn" an operative into a double agent. Get my drift?
I'd write longer, but I have to go read about distributions of assets in divorce...
Judge Posner is clear and concise author who does not attempt to gloss over opposing arguments with a quick swish-swish of the hand (like his son Eric A. Posner does). Instead Judge Posner lays it all on the line. Whoever thought that I would be in favor of curtailing the legally recognizable rights of human beings? Not me...definitely not my husband...but alas, look what has happened.
We must understand, Judge Posner asserts, that there is a balance with national security on the one hand, and civil liberties on the other. There is a point where you take away a certain amount of liberty, and there must be a corresponding increase in national security. The problem occurs when you take away some liberties and there is only an incrementally small increase in our security.
Civil libertarians tend to get all antsy in our pantsies when the government starts talking about curtailing the legal rights of Group X. But I do think in today's world with communication technologies that can allow instant notification of infiltration of a terrorist organization, we need to understand that we cannot try suspected terrorists in the typical criminal court system. National security IS important. Temporary detentions beyond the usually short time periods must be allowed in order to gain valuable information or attempt to "turn" an operative into a double agent. Get my drift?
I'd write longer, but I have to go read about distributions of assets in divorce...
September 15, 2008
I thought this was an interesting book from a well known Federal Appeal's Court Judge, famous for his use of Economic Theory as a way to analyze legal problems. Judge Posner suggests that the way the Courts have traditionally divided prosecution between Crimes and War is not a proper perspective for the current environment of terrorism. Judge Posener sees terrorist attacks on the US to be a substantial threat, and because of that our civil liberties may need to be curtailed to deal with that threat, until that threat is less substantial. He suggests that just like Abraham Lincoln, it may be necessary for the President to violate the provisions of the Constitution, like suspending Habeas Corpus, to protect the security of the US. Under the Authorization to Use Military Force (AUMF) that Congress passed just after 9/11, Judge Posner suggests that the President may already have authorization to do what is "necessary" to protect the US, including wiretapping, suspending rights, torture, etc.
January 4, 2025
This is a classic Posner book. Everything has a cost, which can be traded off against the benefits of its absence. Here, even the sanctimonious ideas of liberty and security do not escape the cold economic calculus. The circumstances, if dangerous enough, may justify a shrinking of liberty to enhance security. The circumstances, if peaceful enough, may justify a shrinking of security to enhance liberty. The point is that a dogmatic devotion to either is not worth dying over. The book embodies what Lincoln said as he suspended habeas corpus without prior congressional approval in the midst of the civil war and a constitutional crisis: “are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”
May 17, 2009
In this book Federal Justice Richard A. Posner proposes some interesting theories of constitutional law in regards how rights are created by the interpretations of the Supreme court. The crux of this book is its analysis is the question of how much liberty are citizens willing to give up to secure peace and order in society. Those who will agree with Posner's arguments are those who are not fearful of large government and trust its ability to deliver a good society. Those who disagree with Posner will be those who are civil libertarians, those who are willing to maintain there rights at the expense of their safety and the safety of those around them.
February 24, 2013
This was required reading for my American Heritage class at BYU, and it was amazing. While it is dense and probably not for someone who doesn’t enjoy non-fiction, I liked it a lot. Posner brings up many points, concepts and counter arguments that you won’t get from TV or a shallow debate with your friends. I feel like I understand the powers allotted to the executive, judicial and legislative branches of government better than before. If only every politician would read this!
October 10, 2008
Judge Posner discusses the reasons to forfeit some civil liberties in light of living with terrorism since 9/11. His is a call to awareness of the gravity of potential terrorist activities. He calls for balance, but says we need to be realistic also. If even one action reveals a terrorist, then it justifies the means it took to find him.
September 10, 2009
Well thought out arguments. A good book.
December 3, 2009
Good book. Very accessible.
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August 10, 2011Interesting treatise about National Security, though quite tedious at times in argument. Ben Franklin would not approve.
February 26, 2008
Posner, as always, loves to pontificate. Too much economics, but that's expected.
August 21, 2013
If you think creating security doesn't mean you will surrender some of your "freedom" think again.
Read
August 18, 2017Posner, as usual, made some very good points. Overall, he made me (1) less paranoid about the NSA, (2) more paranoid that terrorists will one day detonate a nuclear weapon in a city, (3) less offended at the use of torture for informational (non-prosecutorial) purposes, and (4) more informed about civil liberties and their basis (or lack thereof) in the Constitution.
Displaying 1 - 17 of 17 reviews