Terror in the Balance: Security, Liberty, and the Courts (Hardcover)

by Eric A. Posner (Author), Adrian Vermeule (Author)
Key Phrases: libertarian panics, statist ratchet, libertarian ratchet, United States, World War, Carolene Products (more...)

Editorial Reviews

Review

"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


Product Description
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.

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Product Details

• Hardcover: 328 pages
• Publisher: Oxford University Press, USA (January 4, 2007)
• Language: English
• ISBN-10: 019531025X
• ISBN-13: 978-0195310252
• Product Dimensions: 9.3 x 6 x 1.2 inches
• Shipping Weight: 1.4 pounds (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars See all reviews (1 customer review)
• Amazon.com Sales Rank: #747,452 in Books (See Bestsellers in Books)

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Most Helpful Customer Reviews

5.0 out of 5 stars Smart insight but authors fail to understand terrorism, December 12, 2008

By	Thomas W. Sulcer (Summit, NJ USA) - See all my reviews (REAL NAME)

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? 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 will think. 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. It 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, espionage on the public, suspension of habeas corpus, and so on.

But neither left nor right understand terrorism, nor do the authors. America must understand terrorism, fight it, and prevent it, and a strong America will feel no need to frisk airline passengers or snoop 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.