Review essay/9/11, the liberty/security balance, and the separation of powers

Criminal Justice Ethics

Volumn 26, Issue 1, 2007, Pages 59-64

  Kleinerman, Benjamin A ^a  

^a HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79959750504     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129x.2007.9992211     Document Type: Article

References (4)

1. Richard Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (New York: Oxford University Press, 2006). [Bracketed page numbers in the text refer to this volume]
2. Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (New Haven: Yale University Press, 2006).
3. This balancing metaphor leads Posner to suggest that cartoons like those published in Denmark could be censored because they may have stirred greater hatred of the West than any sermon by an extremist imam has done [124]. The very problem with this sort of reasoning is illustrated by Posner's own argument. He writes, only eight pages earlier, But Jesus Christ was the opposite of a warrior priest, Muhammed, in contrast, was a general. Terrorism and religion are tightly entwined in Muslim extremism today [116]. It is precisely this connection that the Danish cartoonists were attempting to illustrate. To suggest that these illustrations should not be published because they will stir hatred toward the West could lead as easily to the conclusion that Posner's own book should not be published for its suggestion that Muslim extremism is tied to the character of Muhammed-after all, as Pope Benedict XVI learned even more recently, such suggestions ignite many in the Islamic world toward the same hatred of the West. It is precisely because, as in this case, the balancing tool can sometimes lead us to place too much emphasis on consequences and not enough on inherent rights that we should be somewhat wary of adopting it in its entirety.
4. An argument of this sort, even if ultimately inadequate, at least concedes the supremacy of the Constitution and the rule of law itself over presidential power; the alternative argument, advanced explicitly by the Bush administration immediately after the NSA revelations, according to which the president has inherent powers to violate such legislation, does not make the same concession.