Customer Reviews

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

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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)

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."