No Longer a Constitution?

What is the relationship between the U.S. Constitution and the current struggle against the perpetrators of jihad against the West?  Should the masterminds of, and participants in, the suicide bombings of September 11 and other terrorist acts be protected by the Bill of Rights and the Geneva Conventions?  In several important decisions by the U.S. Supreme Court and other federal courts, judges have declared that the Geneva Conventions and the Fifth Amendment’s Due Process Clause provide protections for suspected terrorists and that the executive branch must seek the authority of Congress before it can try captured Al Qaeda fighters in military tribunals, as President Bush has sought to do.  One federal judge has declared that, before the administration may eavesdrop on conversations between suspected foreign terrorists and those in the United States, it must seek warrants under the Foreign Intelligence Surveillance Act from a special court designated by Congress for that purpose.  The New York Times and several other newspapers have recently published information on a classified program of government data mining, designed to ferret out transfers of funds to suspected terrorist organizations.  Should the publishing of such information be punished as a criminal violation?

In a provocative little volume, Richard Posner, America’s leading legal scholar, examines the relationship between...

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