Columbia Center for Contemporary Critical Thought
How do you reconcile an opinion like Edmond v Goldsmith with the anti-civil-libertarian positions that Richard Posner advocates in his book Not a Suicide Pact: The Constitution in a Time of National Emergency? The book itself is self-consciously directed against a civil libertarian framework. "The sharpest challenge to the approach that I am sketching," Posner knowingly anticipates, "will come from civil libertarians," by which he means those "adherents to the especially capacious view of civil liberties that is often advanced in litigation and lobbying by the American Civil Liberties Union." In his book, Richard Posner argues in defense of the use of coercive interrogation techniques "up to and including torture"; in support of the National Security Agency (NSA) program of warrantless electronic surveillance of American citizens; in favor of criminally punishing the dissemination (including by the media) of classified material concerning national security; and in defense of the constitutionality (though not yet the necessity) of prohibiting extremist speech. By the end of the book, Richard Posner advances a novel judicial doctrine of "national security necessity" that would essentially extend a form of qualified immunity "to national security officials who violate a constitutional right in good faith in compelling situations of necessity" as a better and simpler alternative to presidential pardons.
Judge Richard Posner on Civil Liberties: Pragmatic Authoritarian Libertarian,
U. Chi. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/640