Terror in the Balance: Security, Liberty, and the Courts
Oxford University Press, USA, 2007 - Law - 319 pages
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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Ackerman Adrian Vermeule al Qaeda American argue argument benefits Carolene Products chapter citizens civil libertarian view civil liberties claim coercive interrogation Congress consequentialist constitutional constrain costs courts crime criminal critics decision defendant deferential democratic failure theory detain detention effects emer emergency policies emergency powers enemy combatants evaluate ex ante example executive action fear gency Geneva Conventions government’s Hamdan Hamdi harm increase institutional Jon Elster judges judicial deference judicial review jury justified Korematsu law enforcement laws of war lawyers legislative liberal legalism libertarian panics majority Mark Tushnet measures ment military minorities national security normal normative officials outlaw and forgive political opponents president president’s problem produce prosecutions protect public threat Qaeda ratchet account reason restrictions risk rules security and liberty slippery slope social statist ratchet statute statutory authorization strict scrutiny suggest Sunstein supra note target terrorism terrorist tion tive torture tradeoff thesis trials Tushnet United violation welfare