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Terror in the Balance: Security, Liberty, and the Courts
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.
328 pages, Hardcover
First published December 11, 2006
38 people want to read
About the author
Eric A. Posner
35 books85 followersEric Posner is the Kirkland & Ellis Professor of Law at The University of Chicago.
His books include Law and Social Norms (Harvard 2000); Chicago Lectures in Law and Economics (Foundation 2000) (editor); Cost-Benefit Analysis: Legal, Economic, and Philosophical Perspectives (University of Chicago 2001) (editor, with Matthew Adler); The Limits of International Law (Oxford 2005) (with Jack Goldsmith); New Foundations of Cost-Benefit Analysis (Harvard 2006) (with Matthew Adler); and Terror in the Balance: Security, Liberty, and the Courts (Oxford 2007) (with Adrian Vermeule). He is also an editor of the Journal of Legal Studies. He has published articles on bankruptcy law, contract law, international law, cost-benefit analysis, constitutional law, and administrative law, and has taught courses on international law, foreign relations law, contracts, employment law, bankruptcy law, secured transactions, and game theory and the law. His current research focuses on international law, immigration law, and foreign relations law. He is a graduate of Yale College and Harvard Law School.
His books include Law and Social Norms (Harvard 2000); Chicago Lectures in Law and Economics (Foundation 2000) (editor); Cost-Benefit Analysis: Legal, Economic, and Philosophical Perspectives (University of Chicago 2001) (editor, with Matthew Adler); The Limits of International Law (Oxford 2005) (with Jack Goldsmith); New Foundations of Cost-Benefit Analysis (Harvard 2006) (with Matthew Adler); and Terror in the Balance: Security, Liberty, and the Courts (Oxford 2007) (with Adrian Vermeule). He is also an editor of the Journal of Legal Studies. He has published articles on bankruptcy law, contract law, international law, cost-benefit analysis, constitutional law, and administrative law, and has taught courses on international law, foreign relations law, contracts, employment law, bankruptcy law, secured transactions, and game theory and the law. His current research focuses on international law, immigration law, and foreign relations law. He is a graduate of Yale College and Harvard Law School.
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Displaying 1 - 3 of 3 reviews
January 27, 2008
Wow. This book is full of unsupported/unprovable assumptions. Basically makes an argument to "reduce process" (a/k/a severely curtailing your procedural and thus substantive due process rights) during times of "emergency."
Conveniently neglects to sufficiently define emergency. Conveniently brushes aside just about every significant opposition with one-sentence dismissals. (i.e. "the burden of uncertainty in evaluating politics and judicial review during times of emergency falls on the civil libertarians.")
My other problems with this tome is that it is disingenuous. It sites Ex Parte Quirin and Korumatsu as supportive for the author's arguments. Never mind that both cases have been resoundingly debunked as judicial embarrassments by the vast majority of modern-day justices. (Yes, even Scalia ranted about the idiocy of Ex Parte Quirin.) The authors use these cases as "proof" that the judicial system was in a state of high-deference to the executive branch. What the authors NEGLECT to mention, is that by the time the case reached the SCOTUS, the defendant in Ex Parte Quirin had already been "tried" and FDR vowed to have them executed no matter what the SCOTUS said. What was the SCOTUS supposed to then? Say that the executive did not have the right to kill the guy and create a constitutional crisis? The Court has no enforcement powers! What are they supposed to do?! Ask the military to pretty-please go arrest their boss so the SCOTUS can slap him on the wrist? In re: Korumatsu (the Supreme Court case that validated the internment of thousands of Japanese-Americans during WW-II) the only current Justice to agree with that decision is guess...guess...you're right, Thomas.
Other things that bug me about this book: Calling the executive branch the "expert" in national security and saying that the judicial branch is merely "amateur." Um...which branch botched the security of the nation on September 11, 2001? That would be the executive branch.
Another thing: here's a sentence from chapter 1: "The Bush administration says that the New York Times's [sic] leak of the National Security Agency's surveillance program has alerted terrorists that the U.S. is monitoring communications they may have believed were secure." That's the "evidence" that the authors use to encourage curtailing a free press. Can you believe that garbage? Oh...and do they mention that the surveillance was occurring BEFORE 9/11? Of course not.
The authors also make a lousy suggestion that countries with a free press are more subject to terrorist attacks. And then follow that up with "correlation does not equal causation"...but of course they imply it DOES...so start shaking in your free speech boots little journalists! You know what other countries are more likely to suffer from terror attacks? Ones that have the letter "A" in its name (Spain, America, Israel, Afghanistan, Iraq, Iran, Pakistan, India.) Ever think that maybe countries that have free presses often times are more imperialist in nature and tend to attempt to impose their interests on other countries? No...of course not.
Dumb book.
Conveniently neglects to sufficiently define emergency. Conveniently brushes aside just about every significant opposition with one-sentence dismissals. (i.e. "the burden of uncertainty in evaluating politics and judicial review during times of emergency falls on the civil libertarians.")
My other problems with this tome is that it is disingenuous. It sites Ex Parte Quirin and Korumatsu as supportive for the author's arguments. Never mind that both cases have been resoundingly debunked as judicial embarrassments by the vast majority of modern-day justices. (Yes, even Scalia ranted about the idiocy of Ex Parte Quirin.) The authors use these cases as "proof" that the judicial system was in a state of high-deference to the executive branch. What the authors NEGLECT to mention, is that by the time the case reached the SCOTUS, the defendant in Ex Parte Quirin had already been "tried" and FDR vowed to have them executed no matter what the SCOTUS said. What was the SCOTUS supposed to then? Say that the executive did not have the right to kill the guy and create a constitutional crisis? The Court has no enforcement powers! What are they supposed to do?! Ask the military to pretty-please go arrest their boss so the SCOTUS can slap him on the wrist? In re: Korumatsu (the Supreme Court case that validated the internment of thousands of Japanese-Americans during WW-II) the only current Justice to agree with that decision is guess...guess...you're right, Thomas.
Other things that bug me about this book: Calling the executive branch the "expert" in national security and saying that the judicial branch is merely "amateur." Um...which branch botched the security of the nation on September 11, 2001? That would be the executive branch.
Another thing: here's a sentence from chapter 1: "The Bush administration says that the New York Times's [sic] leak of the National Security Agency's surveillance program has alerted terrorists that the U.S. is monitoring communications they may have believed were secure." That's the "evidence" that the authors use to encourage curtailing a free press. Can you believe that garbage? Oh...and do they mention that the surveillance was occurring BEFORE 9/11? Of course not.
The authors also make a lousy suggestion that countries with a free press are more subject to terrorist attacks. And then follow that up with "correlation does not equal causation"...but of course they imply it DOES...so start shaking in your free speech boots little journalists! You know what other countries are more likely to suffer from terror attacks? Ones that have the letter "A" in its name (Spain, America, Israel, Afghanistan, Iraq, Iran, Pakistan, India.) Ever think that maybe countries that have free presses often times are more imperialist in nature and tend to attempt to impose their interests on other countries? No...of course not.
Dumb book.
December 28, 2008
Law professors Eric Posner and Adrian Vermeule have hit upon a key problem when a democracy confronts a difficult international threat such as terrorism. A stateless danger threatens. How can a nation cope with such a threat? The normal procedures of peacetime seem to get in the way. There's widespread agreement to let the commander in chief do whatever is necessary. Posner and Vermeule write "courts shouldn't interfere when executive authority tries to protect us."
Clearly there has been a pattern of deference to executive authority during America's wars; for example, during World War II, leaders believed west coast Japanese-Americans posed a security risk (possibly saboteurs or spies), and the Supreme Court later approved their decision to forcibly relocate tens of thousands of innocent people to prison camps. In retrospect, this decision seems wrong -- the United States committed a giant act of racism since Japanese-Americans looked like the enemy, while Italian-Americans and German-Americans blended in. But when America had its back against the wall, the president became practically a dictator and issues such as fairness or rights or tyranny took a back seat to the goal of winning the war.
This book argues for increased executive authority in wartime. They write "courts and legislators are institutionally incapable of second guessing security policy." And they may have a point. If America is fighting a so-called "war on terror," then is the president justified in extra-legal actions such as warrant-less wiretapping, so-called "Sneak and Peek" operations in which government agents search peoples' houses while they are away without warrants, eavesdropping on telephone conversations, espionnage of personal Internet searches, and so on? These authors argue the president must have such power, and their book is a legal justification why this should be so. But clearly, this is a highly controversial position.
I think the authors make a grave mistake, but it's not what left-wing critics have been saying. Rather, the authors miss the big picture. They fail to see that the underlying cause of tyrannical acts is that America lacks an intelligent strategy to prevent terrorism. As a result, government is weak, flails in its efforts to prevent terrorism, and in the process commits tyranny against its own citizens. The list of government violations is well known on the left side of the political spectrum, and include torture of suspected prisoners, espionnage on the public, suspension of habeus corpus, and so on.
But neither left nor right understand terrorism. They don't know what it is. They can't prevent it. But that's what America must do, in my opinion, namely, prevent terrorism. Do this, and a strong America will feel no need to frisk airline passengers or listen in on transatlantic phone conversations without permission and without oversight, and Americans will be more free and safe.
How is terrorism prevented?
Read my book: "Common Sense II: How to Prevent the Three Types of Terrorism". It's on Amazon & Kindle. It's a terrorism prevention strategy which is tough, non-partisan, rational, non-religious, non-technical, brief, written by a citizen for citizens. It prevents terrorism, even smuggled nuclear bombs. But it isn't easy. One expert found it "bracing". Parts are controversial. If America followed my strategy, government wouldn't have to commit tyranny to fight and prevent terrorism, and law professors like Posner and Vermeule wouldn't have to scramble to justify illegal activity.
Examine America: the political process is broken. Washington is corrupt. Congress is gridlocked by pointless partisan squabbling. There's a dangerous concentration of power in the executive branch in one person -- the president -- and the system of checks and balances has come undone. The federal system is out of whack -- ideally state governments should regulate their own economies, but Washington has usurped this power through numerous rulings, often encouraged by the Supreme Court. And this body of unelected justices has, in many respects, assumed a quasi-legislative role never intended by the Constitution's Framers, because it can strike down any law it deems unconstitutional. Washington is like a giant crashed computer, unresponsive to keystrokes, unable to cope with serious issues such as Social Security underfunding, the specter of terrorism, financial meltdowns, global warming, corruption, lobbying running rampant, and so on.
Americans should read "The American Lie" by Benjamin Ginsberg; "The Politically Incorrect Guide to the Constitution" by Kevin R. C. Gutzman; my book; "Up To Our Eyeballs" by several authors; "Our Undemocratic Constitution" by Sanford Levinson; "How America Got It Right" by Bevin Alexander (a tough critique of American foreign policy despite the positive sounding title). These are non-partisan looks at a nation in deep denial. What's needed is serious, structural reform.
I think the problems are so dangerous that a Second Constitutional Convention is required to fix them. So I have summoned this body, using my authority as a private citizen, to convene in Independence Hall, Philadelphia, beginning July 4th, 2009, to craft a new document based on the existing one but which: (1) prevents crime, tyranny, and foreign terrorism (2) restores citizenship as an active relationship between individual and government with specific responsibilities and privileges (3) restores the federal structure where state governments have the most authority to regulate their respective economies (4) fixes the architecture of government to permit intelligent and long-range foreign policy (5) identifies movement in public (to thwart terrorism) while preserving privacy (6) de-politicizes the Supreme Court (7) limits factionalism (8) restores checks and balances between the branches of government.
This is a controversial book which is essentially right in its main premise, but the nation would be much safer if it enacted a tough terrorism prevention strategy that I've advocated.
Clearly there has been a pattern of deference to executive authority during America's wars; for example, during World War II, leaders believed west coast Japanese-Americans posed a security risk (possibly saboteurs or spies), and the Supreme Court later approved their decision to forcibly relocate tens of thousands of innocent people to prison camps. In retrospect, this decision seems wrong -- the United States committed a giant act of racism since Japanese-Americans looked like the enemy, while Italian-Americans and German-Americans blended in. But when America had its back against the wall, the president became practically a dictator and issues such as fairness or rights or tyranny took a back seat to the goal of winning the war.
This book argues for increased executive authority in wartime. They write "courts and legislators are institutionally incapable of second guessing security policy." And they may have a point. If America is fighting a so-called "war on terror," then is the president justified in extra-legal actions such as warrant-less wiretapping, so-called "Sneak and Peek" operations in which government agents search peoples' houses while they are away without warrants, eavesdropping on telephone conversations, espionnage of personal Internet searches, and so on? These authors argue the president must have such power, and their book is a legal justification why this should be so. But clearly, this is a highly controversial position.
I think the authors make a grave mistake, but it's not what left-wing critics have been saying. Rather, the authors miss the big picture. They fail to see that the underlying cause of tyrannical acts is that America lacks an intelligent strategy to prevent terrorism. As a result, government is weak, flails in its efforts to prevent terrorism, and in the process commits tyranny against its own citizens. The list of government violations is well known on the left side of the political spectrum, and include torture of suspected prisoners, espionnage on the public, suspension of habeus corpus, and so on.
But neither left nor right understand terrorism. They don't know what it is. They can't prevent it. But that's what America must do, in my opinion, namely, prevent terrorism. Do this, and a strong America will feel no need to frisk airline passengers or listen in on transatlantic phone conversations without permission and without oversight, and Americans will be more free and safe.
How is terrorism prevented?
Read my book: "Common Sense II: How to Prevent the Three Types of Terrorism". It's on Amazon & Kindle. It's a terrorism prevention strategy which is tough, non-partisan, rational, non-religious, non-technical, brief, written by a citizen for citizens. It prevents terrorism, even smuggled nuclear bombs. But it isn't easy. One expert found it "bracing". Parts are controversial. If America followed my strategy, government wouldn't have to commit tyranny to fight and prevent terrorism, and law professors like Posner and Vermeule wouldn't have to scramble to justify illegal activity.
Examine America: the political process is broken. Washington is corrupt. Congress is gridlocked by pointless partisan squabbling. There's a dangerous concentration of power in the executive branch in one person -- the president -- and the system of checks and balances has come undone. The federal system is out of whack -- ideally state governments should regulate their own economies, but Washington has usurped this power through numerous rulings, often encouraged by the Supreme Court. And this body of unelected justices has, in many respects, assumed a quasi-legislative role never intended by the Constitution's Framers, because it can strike down any law it deems unconstitutional. Washington is like a giant crashed computer, unresponsive to keystrokes, unable to cope with serious issues such as Social Security underfunding, the specter of terrorism, financial meltdowns, global warming, corruption, lobbying running rampant, and so on.
Americans should read "The American Lie" by Benjamin Ginsberg; "The Politically Incorrect Guide to the Constitution" by Kevin R. C. Gutzman; my book; "Up To Our Eyeballs" by several authors; "Our Undemocratic Constitution" by Sanford Levinson; "How America Got It Right" by Bevin Alexander (a tough critique of American foreign policy despite the positive sounding title). These are non-partisan looks at a nation in deep denial. What's needed is serious, structural reform.
I think the problems are so dangerous that a Second Constitutional Convention is required to fix them. So I have summoned this body, using my authority as a private citizen, to convene in Independence Hall, Philadelphia, beginning July 4th, 2009, to craft a new document based on the existing one but which: (1) prevents crime, tyranny, and foreign terrorism (2) restores citizenship as an active relationship between individual and government with specific responsibilities and privileges (3) restores the federal structure where state governments have the most authority to regulate their respective economies (4) fixes the architecture of government to permit intelligent and long-range foreign policy (5) identifies movement in public (to thwart terrorism) while preserving privacy (6) de-politicizes the Supreme Court (7) limits factionalism (8) restores checks and balances between the branches of government.
This is a controversial book which is essentially right in its main premise, but the nation would be much safer if it enacted a tough terrorism prevention strategy that I've advocated.
Read
August 1, 2013'The 9/11 abominations pulverized not only the Constitution’s time-honored checks and balances but the scientific method for arriving at political wisdom and justice. In Terror in the Balance, law professors Eric A. Posner and Adrian Vermeule celebrate the pulverization. The two academics maintain that both history and reason justify concentrating unchecked power in the executive to address ostensible emergencies; that presidents can be trusted to act like statesmen; that their national- security motives will be unsullied; that judges should be sidelined; that jurists have nothing constructive to contribute in responding to external dangers; and that after the emergency ceases, checks and balances will return in full bloom. All’s well that ends well. The post-9/11 aggrandizement of the White House is unworrisome.'
Read the full review, "State of Emergency," on our website:
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Read the full review, "State of Emergency," on our website:
http://www.theamericanconservative.co...
Displaying 1 - 3 of 3 reviews