Terror in the Balance: Security, Liberty, and the Courts

Terror in the Balance: Security, Liberty, and the Courts

Terror in the Balance: Security, Liberty, and the Courts

Terror in the Balance: Security, Liberty, and the Courts

Synopsis

In Terror in the Balance, Posner and Vermeule take on civil libertarians of both the left and the right, arguing that the government should be given wide latitude to adjust policy and liberties in the times of emergency. They emphasize the virtues of unilateral executive actions and argue for making extensive powers available to the executive as warranted. The judiciary should neither second-guess security policy nor interfere on constitutional grounds. In order to protect citizens, government can and should use any legal instrument that is warranted under ordinary cost-benefit analysis. The value gained from the increase in security will exceed the losses from the decrease in liberty. At a time when the 'struggle against violent extremism' dominates the United States' agenda, this important and controversial work will spark discussion in the classroom and intellectual press alike.

Excerpt

When national emergencies strike, the executive acts, Congress acquiesces, and courts defer. When emergencies decay, judges become bolder, and soul searching begins. In retrospect, many of the executive's actions will seem unjustified, and people will blame Congress for its acquiescence and courts for their deference. Congress responds by passing new laws that constrain the executive, and courts reassert themselves by supplying relief to anyone who is still subject to emergency measures that have not yet been halted. Normal times return, and professional opinion declares that the emergency policies were anomalous and will not recur, or at least should not recur. Then, another emergency strikes, and the cycle repeats itself.

One can identify roughly six periods of emergency during American history, each with its own paradigmatic instance of alleged executive overreaching. The undeclared war with France at the end of the eighteenth century produced the Sedition Act, which permitted Federalist authorities to lock up Republican critics of the John Adams administration. The Civil War from 1861 to 1865 produced Lincoln's suspension of habeas corpus and imposition of military rule, which included prosecutions of war critics. World War I and the Red Scare generated Espionage Act prosecutions of war critics and the harassment of immigrants and aliens. World War II produced the internment of Japanese Americans. The early cold war saw prosecutions of communists. The post-9/11 emergency resulted in an array of aggressive security measures, including detention without trial of members of al Qaeda and reliance on coercive interrogation. One might also include the period of civil unrest during the Vietnam War, which led, arguably, to political prosecutions of draftcard burners and others. On the other side of the ledger is the War of 1812, which is perhaps the only emergency where the executive was not accused of overreaching and indeed was condemned for its passivity.

Two opposite lessons may be drawn from this history. The weight of academic commentary argues that the history is one of political and con-

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