Terror in the Balance: Security, Liberty, and the Courts [Hardcover]

Eric A. Posner (Author), Adrian Vermeule (Author)

Book Description

ISBN-10: 019531025X | ISBN-13: 978-0195310252 | Publication Date: January 4, 2007

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.

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

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.

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: 2.0 out of 5 stars  See all reviews (2 customer reviews)
• Amazon Best Sellers Rank: #482,773 in Books (See Top 100 in Books)

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1 of 1 people found the following review helpful:

3.0 out of 5 stars Inside-the-box strategy to prevent terrorism: obey the president, December 12, 2008

By 

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

This review is from: Terror in the Balance: Security, Liberty, and the Courts (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? 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 controversial. I think the strategy is flawed since it tries to cope with a difficult problem (foreign terrorism) by exacerbating another type of terrorism (tyranny). It's one step in the direction of turning the United States into a police state.

Thomas W. Sulcer
author of "The Second Constitution of the United States"
(free on web -- google title above + sulcer)

1.0 out of 5 stars The apple does not fall far from the tree, January 17, 2012

By 

Along Red River of the North "JMS" (Moorhead, MN) - See all my reviews

This review is from: Terror in the Balance: Security, Liberty, and the Courts (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.

As Chris Hedges has noted, "Terror, even for those who have nothing to do with terror, becomes the blunt instrument used by Big Brother to protect us from ourselves." This is anti-Americanism at its worst. As Jonathan Turley opines in the Jan 13, 2012 Washington Post, "In the decade since Sept. 11, 2001, this country has comprehensively reduced civil liberties in the name of an expanded security state," resulting in "a mosaic of powers under which our country could be considered, at least in part, authoritarian."

Why would anyone want to read or buy this book, unless they want to be a prosecutor at Gitmo? The book's ideas should be rebutted by anyone who understands anything about the American Revolution, the U.S. Constitution and the Bill of Rights. Again, Benjamin Franklin's quote is more timely than ever: "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."