The Wire, National Security, and War

Dawinder S. Sidnu has published Wartime America and The Wire: A Response to Posner’s Post-9/11 Constitutional Framework in volume 20 of the George Mason Univesrity Civil Rights Law Journal (2009). Here is the abstract.

Pragmatists subscribe to the view that an individual’s practical experiences shape and inform an individual’s concept of the law. In Not a Suicide Pact: The Constitution in a Time of National Emergency, one of the legal community’s most admired and prolific pragmatists, Judge Richard A. Posner, presents his thoughts on how courts should resolve questions of constitutional law that implicate national security and individual rights.

As the relationship between security and liberty remains largely undefined in the post-9/11 world, Posner offers an important and timely perspective on a critical area of constitutional law. His framework is one in which security interests invariably supercede liberty interests in times of crisis. As such, according to Posner, an executive possesses significant authority to respond to national security needs in wartime and despite established rights, the judiciary should commensurately play a limited checking role on relevant executive action, profiling and discrimination of Muslims may be condoned, torture can be used to elicit information from detainees, and an executive may invoke the “law of necessity” to step outside of the “law of the Constitution.”

This essay uses an element of practical reality -- specifically themes from the acclaimed television series on law enforcement and crime, The Wire -- to challenge each of these conclusions from Not a Suicide Pact. Drawing on those themes, it argues that security and liberty are not locked in a zero sum game, that the judiciary should robustly check executive action especially in these perilous times, that profiling and discrimination of Muslims in the absence of any evidence of wrongdoing should be deemed impermissible, that torture is not only inconsistent with American legal obligations but also counterproductive to the war campaign, and finally that the executive is bound by and must not act beyond the Constitution, exigent circumstances and moral positions notwithstanding.

The essay thus suggests that the courts should give pause to the direction of constitutional law urged by Posner. Appealing to both law and practical reason, it admits that the law must be flexible in the post-9/11 era, but posits that the law and traditional constitutional norms still must guide and restrain the executive temptation to defend the nation at all costs.

Download the article from SSRN at the link.

Note also that some college instructors are using the show in courses. Here's a story from NPR.

Law and the Humanities Institute Presents a Symposium

Law & Humanities Institute, the Benjamin N. Cardozo School of Law Program in Holocaust and Human Rights Studies, and the
Louise and Arde Bulova Fund

present

The Risks of Interpretive Flexibility When Basic Traditions Are
Challenged by an “Emergency”

August 11, 2010
at
Prospect House
Princeton University
Princeton, New Jersey 08544

Registration 8:30am to 9:00am Program 9:00am to 5:30pm

Panelists:


Richard Weisberg
Event Co-Chair,
President, Law & Humanities Institute,
Walter Floersheimer Professor of Constitutional Law and Founding Director, Program for Holocaust and Human Rights Studies, Benjamin N. Cardozo School of Law

Elaine Scarry
Walter M. Cabot Professor of Aesthetics and General Theory of Values, Harvard University

Marci Hamilton
Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law

Peter Brooks
Event Co-Chair,
Andrew W. Mellon Foundation Scholar,
Professor in Comparative Literature and the University Center for Human Values, Princeton University



Sanford Levinson
Charles Tilford McCormick Professor Law, University of Texas
Author of Torture the Debate






This program examines why professional communities have yielded their finest traditions to a perceived sense of “emergency.” The results are often disastrous, as in the case of the French legal community during World War II, and perhaps with the equivocal redefinition and application of “torture” in our own country. This program brings the methods, sources, and readings of the Humanities to a focused inquiry into the reasons lawyers, theologians, and many other professional communities have so often lost their way. A panel and public discussion will delve into the inquiry of professional communities in an “emergency.” CLE credit will be available. Please RSVP to stephanie.spangler@gmail.com with intention of attendance and CLE option.

This program was made possible by a grant from the New Jersey Council for the Humanities, a state partner of the National Endowment for the Humanities. Any views, findings, conclusions or recommendations in this program do not necessarily represent those of the National Endowment for the Humanities or the New Jersey Council for the Humanities.

"The Dark Knight," Counterterrorism, and Law

John Ip, University of Auckland Faculty of Law, has published The Dark Knight’s War on Terrorism. Here is the abstract.

This article considers Christopher Nolan’s 2008 film, The Dark Knight, as a reflection on legality and security in the post-9/11 era. The article examines how the film depicts three specific counterterrorism policies associated with the war on terrorism (namely rendition, coercive interrogation and warrantless surveillance), and argues that none of the film’s depictions of these actions can properly be seen as endorsement of their Bush Administration-era equivalents.

Accordingly, the film is better viewed as something other than an endorsement of the Bush Administration’s war on terrorism. This article contends that, unusually for a film about a superhero, The Dark Knight is ultimately about the importance of law, legal institutions, and popular courage.

Download the paper from SSRN at the link.

National Security TV

Dawinder S. Sidhu, Hosh Law, has published "Wartime America and The Wire: A Response to Posner’s Post-9/11 Constitutional Framework." Here is the abstract.

Pragmatists subscribe to the view that an individual’s practical experiences shape and inform an individual’s concept of the law. In Not a Suicide Pact: The Constitution in a Time of National Emergency, one of the legal community’s most admired and prolific pragmatists, Judge Richard A. Posner, presents his thoughts on how courts should resolve questions of constitutional law that implicate national security and individual rights.

As the relationship between security and liberty remains largely undefined in the post-9/11 world, Posner offers an important and timely perspective on a critical area of constitutional law. His framework is one in which security interests invariably supercede liberty interests in times of crisis. As such, according to Posner, an executive possesses significant authority to respond to national security needs in wartime and despite established rights, the judiciary should commensurately play a limited checking role on relevant executive action, profiling and discrimination of Muslims may be condoned, torture can be used to elicit information from detainees, and an executive may invoke the “law of necessity” to step outside of the “law of the Constitution.”

This essay uses an element of practical reality -- specifically themes from the acclaimed television series on law enforcement and crime, The Wire -- to challenge each of these conclusions from Not a Suicide Pact. Drawing on those themes, it argues that security and liberty are not locked in a zero sum game, that the judiciary should robustly check executive action especially in these perilous times, that profiling and discrimination of Muslims in the absence of any evidence of wrongdoing should be deemed impermissible, that torture is not only inconsistent with American legal obligations but also counterproductive to the war campaign, and finally that the executive is bound by and must not act beyond the Constitution, exigent circumstances and moral positions notwithstanding.

The essay thus suggests that the courts should give pause to the direction of constitutional law urged by Posner. Appealing to both law and practical reason, it admits that the law must be flexible in the post-9/11 era, but posits that the law and traditional constitutional norms still must guide and restrain the executive temptation to defend the nation at all costs.

Download the paper from SSRN here.