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Terror in the Balance: Security, Liberty, and the Courts 1st Edition

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ISBN-13: 978-0195310252
ISBN-10: 019531025X
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Terror in the Balance: Security, Liberty, and the Courts + Terrorism and the Constitution: Sacrificing Civil Liberties In The Name Of National Security
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Editorial Reviews


"Admirably clear and free of technical jargon, this is a relentlessly rational dissection of a topic confused by overstatement, opportunistic political posturing and just plain lack of common sense. If you are not convinced, you will be challenged to explain exactly why not."--Charles Fried, Harvard Law School

"It is conventional wisdom that during times of war and emergency, presidents overreact to threats and excessively violate civil liberties, and courts do too little to stop these developments. Terror in the Balance challenges this conventional wisdom from top to bottom. With its incisive and contrarian analyses of contemporary issues like coercive interrogation, military commissions, censorship laws, the PATRIOT Act, and ethnic profiling, Terror in the Balance is an enormously important contribution to the study of constitutional government during wartime. This book will cause civil libertarians to pull their hair out; it will also force them to improve their arguments."--Jack L. Goldsmith, Harvard Law School

"A level-headed approach to considering the stand-alone merits of specific policy proposals in terms of their efficacy and their offsetting costs. The authors provide a framework of analysis and discussion that eschews the far more common, and far less insightful, approaches so often offered by both supporters and critics of current government policies."--Robert M. Chesney, Wake Forest University School of Law

"This book provides a powerfully argued counterpoint to the conventional wisdom that during time of war or emergency the U.S. democratic process operates poorly, and needs to be supervised by rights-enforcing courts. While some may see the book's call for judicial deference as an apologia for executive unilateralism, the authors' rigorous analysis will force civil libertarians to be more precise and sophisticated in their arguments, and public debate will surely benefit."--Curtis A. Bradley, Duke Law School

About the Author

Eric A. Posner is Kirkland & Ellis Professor of Law, University of Chicago. He co-authored The Limits of International Law and New Foundations of Cost-Benefit Analysis, authored Law and Social Norms, and edits the Journal of Legal Studies. Adrian Vermeule is Professor of Law at Harvard Law School. He is the author of Judging under Uncertainty: An Institutional Theory of Legal Interpretation.


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Product Details

  • Hardcover: 328 pages
  • Publisher: Oxford University Press; 1 edition (January 4, 2007)
  • Language: English
  • ISBN-10: 019531025X
  • ISBN-13: 978-0195310252
  • Product Dimensions: 9.3 x 1.1 x 6.2 inches
  • Shipping Weight: 1.6 pounds (View shipping rates and policies)
  • Average Customer Review: 2.0 out of 5 stars  See all reviews (2 customer reviews)
  • Amazon Best Sellers Rank: #1,529,360 in Books (See Top 100 in Books)

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5 of 6 people found the following review helpful By Thomas W. Sulcer on December 12, 2008
Format: Hardcover
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, Lincoln imprisoned peace activists. 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 and were not imprisoned. 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, "Sneak and Peek" operations in which government agents search peoples' houses clandestinely without warrants, eavesdrop on phone conversations, record personal Internet searches, and so on?
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9 of 12 people found the following review helpful By Along Red River of the North on January 17, 2012
Format: Hardcover
I'm sure I will be lambasted for this review, as I was for the review I wrote for his father's equally dangerous and misleading book, Not a Suicide Pact. Just to be clear, what I am critiquing is the author's radical thesis embracing a foreign and tyrannical ideology that advocates giving up our civil liberties to the administrative fiat of a unitary executive. Posner and Vermeule argue that the threat of terrorism constitutes a state of emergency that necessitates the suspension of the U.S. Constitution. I'm sure John Yoo, Dick Cheney, Alberto Gonzalez or Lindsay Graham are happy about that, but I am appalled. Here's a quote from the book: "Constitutional rights should be relaxed so that the executive can move forcefully against the threat. If dissent weakens resolve, then dissent (freedom of speech) should be curtailed. If domestic security is at risk, then intrusive searches should be tolerated." How does curbing dissent enhance national security? I don't get it.

This was not what the American founders had in mind. As Thomas Paine observed, "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself." (Thomas Paine, in First Principles of Government (1795)) Does anyone believe that their advocacy for an uber-unitary executive is a rational response or proposal based on historical, legal or constitutional scholarship? I use the prefix "uber" intentionally, because the authors are enamored with the legal theories of the Nazi jurist Carl Schmitt. Wow! Let's dismiss Madison and embrace Schmitt's the LEADER is the LAW. That will make us all so much safer, just like it did in Germany in the 1930s.
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