Posner-Stone debate

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University of Chicago Professor Geoffrey R. Stone (l) and Seventh Circuit Judge Richard A. Posner (r) offer different perspectives on the legal issues related to the war on terror. WLJ Photo by David Ziemer

Should terror suspects be detained incommunicado? Should warrants be required to conduct surveillance in the war on terror?

Judge Richard A. Posner, and Professor Geoffrey R. Stone, from the University of Chicago, debated those issues at the Seventh Circuit Bar Association’s 56th annual convention on May 7 at the Pfister Hotel in Milwaukee.

Posner began by stating that the U.S. Constitution is extremely vague and that the framers did not foresee the current situation. “Constitutional law is the creation of the Supreme Court; it is not the Constitution itself, and it can be uncreated,” Posner said.

“Judges are writing on a clean slate regarding the constitutional rights of terrorists; the Constitution is so malleable and nebulous that judges can do what they want,” he said.

Looking to other nations that have dealt with terrorism for many years, Posner noted that they allow extensive detention of persons suspected of plotting terrorist attacks, and argued that the same should be allowed here.

“People say we can’t do that in the U.S. — you need a probable cause hearing within 48 hours — but that is not so. There is nothing in the Constitution about it. … I can see why we would want to detain terrorists incommunicado. I don’t see a constitutional objection.”

Posner also noted that the warrant requirements of the Fourth Amend-ment aren’t intended to deal with preventing terrorist attacks.

When a conventional warrant is ob-tained, it is done to gather evidence of a crime that has generally already occurred. To obtain a warrant, the Supreme Court has held that there must be probable cause that a search will produce evidence of a crime.

But, Posner noted, surveillance of terror suspects is not meant to gather evidence of a crime; it is intended to prevent a terrorist act. “Maybe you should only need probable cause that the surveillance will be productive and produce essential information,” he said.

Addressing whether foreign countries’ methods of dealing with terror could be imported here, Posner replied they could. “If you look abroad at countries with a history of terrorism, most of what they do could be done here, because of the protean nature of the Constitution.”

Posner argued for a high level of deference to the legislative and executive branches when security interests are present, but warned against classifying terrorism as either war or crime. “The term ‘war on terror’ is misleading, but terrorism can’t be considered a mere criminal problem.”

Observing that, once a terrorist plot is identified, it can be effectively neutralized and stopped, Posner stated, “We can get away from the preoccupation with traditional judicial tools. The need is to find out who the terrorists are.”

To protect intrusion on civil liberties, Posner suggested defining terrorism narrowly, and possibly abrogating the plain view exception if only generic criminal activity is found.

Professor Stone agreed on some points — that the Constitution is vague, and that it is sensible to give a high degree of deference to other branches, because judges lack knowledge regarding national security.

Stone noted that, in most cases, if a judge makes the wrong decision, the consequences are not tragic, and the results can be reversed. In the national security area, however, a mistake by a judge could be disastrous.

The problem, according to Stone, is that 200 years of experience show that judges have been too deferential in times of war, and have failed to be a check on excesses.

Stone said the government has always overreacted — by suspending habeas corpus in the Civil War, prosecuting sedition laws in World War I, and interning Japanese-Americans in World War II. Based on hundreds of years of experience, Stone asserted that government requests for more power should be treated with skepticism, rather than deference.

In light of the government’s reaction in previous periods of war, Stone took issue with those who maintain that, since 9-11, there has been an “unprecedented rollback of civil liberties.” Instead, he characterized the response as “restrained.” Posner agreed, calling the response “moderate.”

“There have been no sedition laws, no internment, no suspension of habeas corpus, and none of those proposals are even remotely on the table,” Stone noted. “Nevertheless, the record leaves a good deal to be desired.”

Specifically, he noted the government’s position in the Padilla case: “The assertion of the Bush administration that I find shocking is that in the Padilla case — that the executive can seize a U.S. citizen on U.S. soil, bring him to a military facility, give no access to an attorney, and hold him incommunicado for interrogation, based solely on the judgment of the executive that he is an ‘enemy combatant.’ That is so far beyond the pale, that it should cause serious questions.”

Turning to warrantless electronic surveillance of suspected terrorists, Stone said he was troubled by the fact that it was done in secret, in defiance of FISA, when the administration could have gone to Congress to amend the law.

Posner returned to the theme that simply classifying the war on terror as a war, and justifying acts based on the executive’s war power, is indefensible.

Nevertheless,
he noted that in Great Britain, terror suspects can be held incommunicado, without a lawyer, but subject to judicial supervision, for up to 28 days, and the arrest is not publicized.

Asked, “Do we need this?” Posner answered, “I don’t know, but I don’t see any constitutional objection or grave violation of civil liberties.”

Both Posner and Stone agreed that, during World War II, the military’s breaking the enemy’s code was considered a great success, and the surveillance it entailed was not even considered a cosntitutional issue.
Posner concluded by stating that, in a “real war,” the president’s Article II powers are active, and he can do what he wants, but stated, “the problem is, we are not in that situation.”

David Ziemer can be reached by email.