Cowering Judge Richard Posner Advocates Secret Trials

High powered intellectual and federal judge Richard Posner is a very frightened man. So frightened that he apparently wants to ditch the Constitution. This is how The Australian reports Posner's remarks before a convention of Australian jurists:

A top-ranking U.S. 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, a supposedly liberal-leaning jurist regarded by many as a future US Supreme Court candidate, said traditional concepts of criminal justice were inadequate to deal with the terrorist threat and the US had "over-invested" in them.

Shame! Shame!

Unfortunately, we started down the road of eroded civil liberties with the passage of the 1996 Antiterrorism and Effective Death Penalty Act which allowed secret courts and secret evidence to be used to deport non-citizens on suspicion of terrorism or of supporting terrorism. But at least the law applied to just non-citizens. In 2001, it looked as though Congress might muster the courage to repeal this awful law.

After the September 11 atrocities, the Bush administration tried to arrogate to itself the right to determine if citizens were "enemy combatants" who could be held indefinitely without trial. In addition, the Bush administration authorized the illegal wiretapping of Americans by the National Security Agency. Judge Posner thinks that such wiretapping is just dandy. To get around caviling civil liberties concerns, Posner helpfully suggested new legislation that would somehow simultaneously protect American privacy and civil liberties while letting the Feds listen in on any conversations they want to without benefit of prior judicial oversight. This seems to me to be a flat-out constitutional contradiction, but then again, I am not a uber-intellectual federal jurist, so what do I know?

So let me turn to someone who was a fairly smart federal jurist who did believe that secret courts were anathema to the U.S. Constitution and to Americans. In 1948, Justice Hugo Black issued the majority opinion in the case of In re Oliver. In this case the defendant had been sent to jail on contempt of court charges by a Michigan circuit court judge based on testimony given the judge in secret. Black forthrightly declared:

The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power…

It is 'the law of the land' that no man's life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal.

According to The Australian, Posner also has a dim view of the fortitude of his fellow citizens:

Judge Posner said the US temper and culture could not sustain repeated terrorist attacks.

Maybe not, but I think that there still plenty of Americans who are stirred by Patrick Henry's admonition:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!

Surely the risk of dying in a terrorist attack is worth taking if that's what is necessary to defend the liberties guaranteed by our Constitution.

reason's interview with Posner in happier times here. My earlier column on Posner's multiplying fears here.