-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: June 28, 2007 4:41:20 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Supreme Court Candidate Says Constitution Is Obsolete,
"Rule of Law" Is a Joke
Secret trials for terrorists necessary, says US judge
David Nason, Chicago
29 Jun 07
http://theaustralian.news.com.au/printpage/0,5942,21986986,00.html
A TOP-RANKING US judge has stunned a conference of Australian
judges and barristers in Chicago by advocating secret trials for
terrorists, more surveillance of Muslim populations across North
America, and an end to counter-terrorism efforts being "hog-tied"
by the US Constitution.
Judge Richard Posner, regarded by many as a future US Supreme Court
candidate, said [the U.S. Constitution and] traditional concepts of
criminal justice were inadequate to deal with the terrorist threat
and the US had "over-invested" in them.
His proposed "Big Nrother" solutions flabbergasted delegates at the
Australian Bar Association's biennial conference, where David
Hicks's lawyer, Major Michael Mori, is to be awarded honorary life
membership.
"We have to fight terrorism with our strengths, and our strengths
evolve around technology, including the technology of
surveillance," said Justice Posner, a prolific legal scholar who
sits on the US Court of Appeals for the Seventh Circuit.
"Are there terrorist plots that are at a formative stage among the
large US Muslim community of two to three million people? In the
600,000 Canadian Muslim population, are there people planning
attacks on the US?
"What we have to do is discover the extent of the terrorist threat
to the US. There is a danger, and it demands a rethinking of some
of our conventional views on the limits of national security measures.
"We should think of surveillance as preventative, not punitive. We
should think of controls that have nothing to do with warrants or
traditional criminal justice to prevent abuses."
Judge Posner said the US temper and culture could not sustain
repeated terrorist attacks.
Melbourne QC Tim Tobin said it was a shock to hear such hard and
isolationist positions coming from a judge once known as a liberal
thinker. While he was disturbed by the judge's proposed crackdown
on US and Canadian Muslims, he suspected the sentiment would be
welcomed by the Howard Government.
Judge Posner raised the prospect of secret trials as a "tailored
regime" to prosecute terrorists in cases where there was a concern
about classified information going public.
Queensland SC Glenn Martin said he had been "jolted" by the
address: "I hope we never have secret trials in Australia."
Judge Posner said the US was "a law-saturated society where even
non-lawyers tend to think of problems in terms of legal categories".
"Criminal justice and war are the two responses we have to
terrorism. Each comes with its own legal institutions and doctrines
and regimes but the struggle against international terrorism
doesn't fit either very well."
He said it was "quite misplaced" to suggest national security
measures in force or contemplated in the US could endanger liberty
and undermine the political system. This was because governments
could no longer conceal what they did: "We have a very aggressive
media and a huge and complex government where many people in the
government are quite willing to talk to the press."
------------------
Richard Allen Posner (born January 11, 1939, in New York City) is
currently a judge on the United States Court of Appeals for the
Seventh Circuit. He is one of the most influential living legal
theorists, and a major voice in the law and economics movement,
which he helped start while a professor at the University of
Chicago Law School. He currently serves as a lecturer at the Law
School.
Posner's mother's relatives were Jews from Vienna who looked down
on his father's family, which was from Romania and poorer than they
were. His mother was a Communist and was friendly with the family
that adopted the Rosenberg children. The day Stalin died was a day
of mourning in the Posner household. Posner's father had a
chequered career: as a young man, he worked in a jewellery business
with some cousins; then, having attended law school at night, he
became a criminal-defence lawyer. After the Second World War, he
became a moneylender, specializing in second mortgages in New York
slums.. http://www.igreens.org.uk/richard_posner.htm
Posner graduated from Yale College (A.B., 1959, summa cum laude),
majoring in English, and from Harvard Law School (LL.B, 1962, magna
cum laude), where he was first in his class and president of the
Harvard Law Review.
President Ronald Reagan appointed Posner to the Seventh Circuit in
1981. He served as Chief Judge of that court from 1993 to 2000.
Robert S. Boynton wrote in The Washington Post that Posner will
never sit on the Supreme Court because, despite his "obvious
brilliance," he has taken a number of positions seen as
"outrageous" such as:
Contending in a 1999 Raritan article that the rule of law is an
accidental and dispensable element of legal ideology;
Arguing that buying and selling babies on the free market would
lead to better outcomes than the present situation, government-
regulated adoption
In 1992, he published a book called "Sex and Reason," which argued
that the sex drive was subject to the control of rational
calculation. The fact that sex was instinctive, he claimed, did not
preclude an economy of sexual exchanges, any more than the fact
that hunger was an urge precluded a science of agriculture. Some
of Posner's eccentric conclusions in "Sex and Reason" were that
normal men would rape women and seduce children if there were no
laws against it.
Posner's political and moral views are hard to summarize. His
parents were affiliated with the American Communist party, and in
his youth and in the 1960s as law clerk to William J. Brennan he
was generally counted as a liberal.
However, in reaction to some of the perceived excesses of the late
1960s, Posner developed a strongly conservative bent. Today,
although generally considered a man of the Right, Posner's
pragmatism, his qualified moral relativism and moral skepticism,
and his affection for the thought of Friedrich Nietzsche, set him
apart from most American conservatives.
"Posner finds the rituals of the courtroom vexing impediments to
the real business of punishing criminals and freeing up markets.
"I'm not fully socialized into the legal profession, he says. f
someone is obviously guilty, why do you have to have all this
rigmarole?"
In 1994, during his term as chief judge, the Chicago Council of
Lawyers published a distillation of complaints from many embittered
veterans of his court. Their evaluation described him as frequently
bored by the arguments the lawyers presented ... 'A very
substantial number of lawyers believe that Chief Judge Posner
routinely does not pay sufficient attention to the facts, or leaves
out crucial facts, in order to reach desired conclusions. .. .
Chief Judge Posner feels less constrained by precedent, history,
and the proper limits on appellate judging than, in the Council's
view, he should."
Judge Posner is a prolific author of articles and books on topics
including the 2000 presidential election recount controversy*,
President Bill Clinton's scandalous affair with Monica Lewinsky and
his resulting impeachment procedure, and the 2003 invasion of Iraq.
"Posner acknowledges the likelihood that more Florida voters
intended to vote for Al Gore but he defends the Supreme Court for
giving the election to Bush, 'in order to avoid national chaos."
on Privacy
He opposed the right of privacy in 1981, arguing that the interests
protected under privacy are not [legally] distinctive. He contended
that measures to protect privacy are economically inefficient.
on Torture
When reviewing <fellow Zionist neocon> Alan Dershowitz's book, "Why
Terrorism Works: Understanding the Threat, Responding to the
Challenge", Posner wrote in The New Republic, that "If torture is
the only means of obtaining the information necessary to prevent
the detonation of a nuclear bomb in Times Square, torture should be
used -- and will be used -- to obtain the information. ... No one
who doubts that this is the case should be in a position of
responsibility."
------------
"Conservatives" cheer on Judge Posner's highly un-conservative
defense of federal police powers
http://glenngreenwald.blogspot.com/2006/08/conservatives-cheer-on-
judge-posners.html
Court of Appeals Judge Richard Posner has become one of the leading
advocates of drastically expanded federal police powers as a
response to the terrorist threat.
He advocates the creation of a domestic spy agency (an internal CIA/
KGB/Stassi-type agency to monitor domestic activities); expanding
the group of citizens subjected to warrantless eavesdropping to
include even "innocent people, such as unwitting neighbors of
terrorists"; allowing warrantless eavesdropping EVEN WHEN it
violates the law; and stripping federal courts of their ability to
enforce LEGAL LIMITS on the President's national security powers.
Posner was interviewed yesterday by Glenn Reynolds and Reynolds'
wife, Helen, concerning the topics covered in Posner's new book,
Not a Suicide Pact: The Constitution in a Time of National
Emergency. The podcast interview is here. The two Reynolds --
credit where it's due -- actually do a decent job of asking Posner
the right questions, which allow Posner to expound what are his
truly radical theories of constitutional interpretation. What is
amazing is that self-proclaimed "conservatives" are celebrating
Posners' views even though those views are exactly those which
conservatives have always claimed to be against.
Posner's core argument is that the threat of terrorism is so "very
great" and "very novel" -- "sui generis" -- that the Constitution
must be intepreted differently than it ever was before in order to
deal with the threat. Posner repeatedly claims in the interview
that "the Constitution is flexible" and he even says that it is a
"loose garment, not shrink wrap." Thus, we "have to interpret the
Constitution in a way to enable us to cope with unanticipated
dangers."
Posner's relentless characterization of the Constitution as this
amorphous, evolving document which must be shaped and molded by
political events led Reynolds to ask the right if not obvious
question -- isn't Posner advocating the very theory of a "living,
breathing Constitution" which conservatives have long claimed to
despise, even consider tyrannical?
Posner paused and stuttered quite a bit after being asked that
question, and then admitted, quite astonishingly, that he "hadn't
thought about that" painfully obvious point before. But he then
told Reynolds that he's "right" about the fact that he, Posner, has
an elastic view of the Constitution -- that it is a "flexible"
document. Posner then justified that view by essentially
denegrating the Constitution as obsolete and useless in light of
this grave new threat. The Constitution is "nothing but an 18th
Century document," Posner complained, and "the notion that [the
Founders] had the answers to 20th Cenutry problems is, I think,
wrong and dangerous."
Posner may or may not be right about the claim that terrorism
requires changes to the system of constitutional protections
guaranteed to Americans by that document. But he is self-evidently
and dangerously wrong to suggest that we can just get rid of
constitutional structures by whimsically interpreting them away at
will as obsolete in light of new political developments. The
Founders obviously recognized that subsequent events or re-
assessments may require changes to the Constitution -- and they
therefore provided within the document several procedures for
amending it. If Posner is right that the U.S. Constitution should
be radically changed because of some Islamic extremists, then those
changes can be effectuated only through the amendment process, not
by judges deciding on their own that the terrorism threat
necessitates an abridgement of liberties.
Posner is expressly advocating that the Constitution be changed
without complying with any of those procedures -- simply by having
judges "interpret" the Constitution differently in light of their
view of political events and the terrorist threat. George Bush
advanced the same view of the living, breathing Constitution
(albeit in a much more muddled way) when he criticized Judge
Taylor's ruling by claiming that supporters of her decision "do not
understand the nature of the world in which we live" -- as though
Constitutional protections guaranteed to American citizens by the
Bill of Rights are not to be discerned from that document, but
instead, by one's abstract understanding "of the world in which we
live."
In one sense, this is nothing new. In order to defend the Bush
administration's lawlessness, self-proclaimed conservatives have
been advocating legal theories which are the very antithesis of the
strict constructionism and originalism they claim to espouse. They
insist, for instance, that the President has the power to engage in
warrantless eavesdropping on Americans under Article II, even
though Article II mentions not a word about surveillance or
eavesdropping (such powers instead presumably "emanate" from the
"penumbra" of the Executive's generalized Commander-in-Chief
powers). Similarly, they contend that the 2001 AUMF "implicitly"
repealed eavesdropping limitations imposed by FISA even though that
statute also failed to say a word about eavesdropping, surveillance
or FISA.
But Posner is nothing if not candid, and so he much more explicitly
argues that the Constitution should be a clay-like instrument that
can be shaped and changed by judges based on the whimsical
political events of the day. Posner is a consistent theorist -- he
requires a thorough intellectual justification for his conclusions
-- and he knows that the Constitution as it has been understood and
interpreted simply bars the extremist policies he wants, such as
prolonged periods of lawless detention of U.S. citizens and his the
massively expanded warrantless domestic surveillance which he
advocates.
So Posner does what he is intellectually forced to do -- he argues
that all of those Constitutional limitations can simply be done
away with, banished with a magic wand, due to the terrorist threat,
and he claims that this would happen if only judges had a better
understanding (like he does) of just how grave this threat is. But
arguing that the Constitution should be understood differently in
light of contemporary political developments supposedly
"unanticipated" by the Founders is precisely the legal theory which
conservatives claim to despise.
Yet they nonetheless cheer on Posner, because Posner is advocating
drastically expanded domestic police powers, and that -- rather
than any limitations on judicial power or abstract theories of
judicial restraint -- is what the new "conservatives" want most.
And as their otherwise inexplicable support for Posner
demonstrates, they don't really care HOW that's accomplished.
See what's free at AOL.com.
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