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