Monday, August 31, 2009

Reading :: Terror in the Balance

Terror in the Balance: Security, Liberty, and the Courts
By Eric A. Posner and Adrian Vermeule

This book was one of several I received recently from Oxford University Press. I suppose it counts as pleasure reading, since it's far outside my expertise, focused on constitutional law. In any rate, I'll make this a short review since I don't have the ConLaw background to evaluate it critically on its own terms.

In a sense, that's what the book is about: deference to others' expertise. But in this case, deference is a more high-stakes issue, since the topic is: to what extent should the judiciary defer to the executive branch in times of crisis? The authors argue that the judiciary has traditionally given much deference to the executive branch in such periods, allowing it to temporarily compromise civil liberties because "civil liberties interfere with effective response to the threat" (p.4). This deference sometimes leads to bad decisions, they acknowledge, but they claim that "Both Congress and the judiciary realize that they do not have the expertise or the resources to correct the executive during an emergency. Only when the emergency wanes do these institutions reassert themselves, but this just shows that the basic constitutional structure remains unaffected by the emergency." They argue that "the traditional practice of judicial and legislative deference has served Americans well, and there is no reason to change it" (p.5).

The authors use some Bush-era cases as case studies, but they make clear that they do not defend particular choices on their merit (p.9). (Indeed, they say, many executive decisions are bad calls; they point to the internment of Japanese-Americans in WWII as one.) Rather, they argue that deferring to the executive branch leads to swifter decision-making and does not lead to systematically biased decision-making. They further assert that as the emergency recedes, Congress and the judiciary reassert themselves, as in the Hamdan and Hamdi decisions that reined in some of the Bush Administration's earlier executive decisions.

The authors' arguments for this view are heavily based in ConLaw, a body of work - and, I suspect, a form of argumentation - with which I am unfamiliar. To me, the arguments look bloodless and Machiavellian, in the positive sense of being ruthlessly pragmatic rather than idealistic. I am not sure I find them convincing, particularly the point that the legal system can systematically bounce back from deference, but as I say, I don't have the ConLaw background or the historical background to take these on in a principled fashion.

I also thought that parts of the book were unfocused, particularly in Ch.6, where the authors take a detour to argue for narrowly legalizing coercive interrogation on pragmatic grounds. For me, this was the most uncomfortable part of the book: the authors acknowledge the moral issues with coercive interrogation, but argue that legalizing it would be the best pragmatic way to control it and meet our national moral obligations. As I said, the arguments are sometimes bloodless - and in this case, this shocking (to me) argument distracted from the book's central argument about judicial deference.

I did enjoy touring the legal system as a system, though. In any case, a thought-provoking book.

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