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

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Oxford University Press, USA, 2007 - Law - 319 pages
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In the wake of 9/11, the United States government has relied on a number of aggressive security measures to protect the nation. From domestic wiretapping without warrants to the surveillance of Muslim and Arab Americans and the coercive interrogation of suspected terrorists, the Bush administration's policies have attracted much controversy and been decried as outrageous violations of domestic and international law. In Terror in the Balance, Eric A. Posner and Adrian Vermeule argue that the legal and institutional basis of this critique is wrong. When governments strive to increase national security they should be given wide latitude to adjust policy and liberties in the time of emergency and war. Deference to the executive during emergencies, Posner and Vermeule contend, is necessary and powers must be made available to the executive when the increase in security justifies the corresponding losses from the decrease in liberty. Further, when the executive is compelled to implement controversial methods of protecting its citizens such as discrimination against aliens or censorship of hate speech, the judiciary should not interfere on constitutional grounds except in unusual circumstances. Courts and legislators are institutionally incapable of second guessing security policy, and trying to enforce ordinary law during times of emergency shackles government when it most needs flexibility. American constitutional law and international law do not provide reasons for courts or legislators to depart from their historical posture of deference to the executive during national emergencies. - Publisher.
 

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Contents

Introduction
3
CONSTITUTIONAL LAW AND THEORY
11
APPLICATIONS
157
Emergency Powers and Lawyers Expertise
273
Notes
277
Index
309
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About the author (2007)


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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