Legal Commentary

My friend and occasional sparring partner in crim law theory, Alice Ristroph (Utah to Seton Hall via Harvard Ethics), has unleashed the dogs of war on "Professors Strangelove," Chicago's Eric Posner and Harvard's Adrian Vermeule. Up on SSRN now, you can find her bare-knuckled critique of Posner and Vermeule's book, Terror in the Balance: Security, Liberty and the Courts. The review essay appears in the Winter 2008 issue of Green Bag. Here's an excerpt:

And after comedy, there is farce. With no discernible comedic

intent, a number of lawyers and law professors have reprised roles

from Kubrick?s famous film [Dr. Strangelove]. Insisting that the war on terror is too

important to be left to anyone other than the President, scorning

opponents of torture as sissies afraid to muss their hair, and rapidly

collecting promotions and personal citations, these lawyers are

teaching America to stop worrying and love the waterboard ? and

the wiretap, and the ethnic profiling, and the indefinite detention,

and all the other strategies of our new war that might be funny if

they weren?t so deadly serious.

In the academy, the distinguished professors who advocate torture,

executive absolutism, and other departures from the rule of

law have been met with respectful, and inconsequential, disagreement.

Indeed, if law professors such as John Yoo, Eric Posner, and

Adrian Vermeule are today?s Ripper, Turgidson, and Kong, others

in the legal academy are more akin to President Merkin Muffley.

The balding, bespectacled Muffley is the only character in Dr.

Strangelove who fully appreciates the moral implications of nuclear

war, but his hesitancy and unfailing politeness render him a mostly

ineffective counterweight to his war-mongering colleagues. He is

the voice of reason, but that voice is timid and faltering. Today,

academic counterparts to Merkin Muffley take exception to the bellicose

program of the Professors Strangelove. But ?debates? over

national security in the American legal academy are choreographed

events among gentlemen, usually featuring excellent sportsmanship

all around. Neither side wins or loses; everyone shakes hands at the

end; and everyone keeps his job, his viewpoint, and his dignity.

It is unlikely that the apologists for torture and executive absolutism

will persuade many others in the legal academy to join their

cause. But that is not the point. The Professors Strangelove play to

an audience beyond the academy. They provide a degree of intellectual

legitimacy to an ideology and a political program that has been

developed, for the most part, outside the ivory tower.

Eric Posner and Adrian Vermeule have recently published Terror

in the Balance, a new defense of executive power. That is, the book

is new. Its central argument is the familiar claim that in times of

emergency, the executive must curtail liberty to ensure security,

and the courts should not interfere.