Legal Commentary

I suppose this might count as a ?me too? posting, since I also published a review of Eric Posner and Adrian Vermeule?s book, Terror in the Balance, now available here. I also discuss Judge Posner's book, Not a Suicide Pact. I?ll let others decide whether I too am like President Merkin Muffley, as Alice Ristroph suggests most legal academicians have been in using ?the voice of reason? that ?is timid and faltering.? I hope I maintain respectful disagreement with their project without being timid and faltering.

I find that one of the most disturbing aspects of Terror in the Balance is its hostility to discussion of national security and civil liberties issues by law professors and others who argue against violations of civil liberties. They state the goal of their book is:

'to restrain other lawyers and their philosophical allies from shackling the government?s response to emergencies with intrusive judicial review and amorphous worries about the second-order effects of sensible first-order policies. We hope merely to clear the ground for government to react to emergencies . . . . [I]n any case nothing in the lawyer?s expertise supplies the necessary tools for improving on the government?s choices."

Moreover, Posner and Vermeule write that with regard to philosophers engaged in discussion of the moral implications of public policy involving torture, ?[t]here is no reason for officials or interested publics to afford their arguments special weight as philosophical argumentation, rather than the weight that the opinion of any person in the street deserves on matters of emergency policy.?

Although we might expect that important topics, such as whether we want executive officials to have unfettered license to engage in torture, would require widespread public discussion, Posner and Vermeule rely on their notion of expertise instead. Moreover, although we might think that the biggest threats come either from outside (terrorists), or from institutional failures (tyranny), we learn from them that in fact the biggest threat comes from ourselves (or ?civil libertarians? as ?we? are called ? that is, non-experts in national security policy who are concerned about constitutional principles). After the jump, a small a taste from my review . . .

Contrary to the traditional supposition, unilateral authoritarian executive action is not a concern [to Posner and Vermeule]. Rather, civil-libertarian constraints create the real danger of creating undesirable ratchets. ?Civil libertarians are the ratcheters, insisting that every increase in civil liberties should be treated as a platform for further increases.? On this view, if courts were to follow the directions of civil libertarians, we would have increased protection for civil liberties at the expense of security. Moreover, because ?the balance between security and liberty is constantly readjusted as circumstances change,? Posner and Vermeule conclude that ?a government that refuses to adjust its policies has simply frozen in the face of the threat. It is pathologically rigid, not enlightened, and that rigidity is at least as great a threat to national values or to the nation?s existence.? The civil-libertarian pathology gets even more bizarre under Posner and Vermeule?s account, as they declare that ?[n]o nation preserves liberty atop a stack of its own citizens? corpses, but if one did, it would not be worth defending.? By valuing civil rights and liberties, and by sometimes providing structural limitations on the methods and options government has in implementing policies, even security policies, the civil libertarian has become the real danger to the state, pathologically rigid and unenlightened, and willing to stand on principle atop a stack of corpses.

I find their argument here (and elsewhere) quite fantastical -- the civil libertarian becomes the threat, figuratively displacing the terrorist as the threat -- and I would not argue with Dan?s friend that there is something farcical in their approach at times as well.