No Reason to Believe: Radical Skepticism, Emergency Power, and Constitutional Constraint

Abstract

This essay reviews Eric Posner and Adrian Vermeule's Terror in the Balance: Security, Liberty, and the Courts, which I consider the most serious, sustained, and thoughtful effort to defend the Bush administration's aggressive tactics in the war on terror yet written. That the book is ultimately deeply flawed only underscores the failure of the Bush administration's approach.

Where most historians view with regret the excesses of past security crises, from the criminalization of speech during World War I to the internment of Japanese Americans during World War II, Posner and Vermeule advance the contrarian view that the system worked exactly as it should have, because in each instance, executive officials took aggressive action in response to perceived security threats, and courts and Congress deferred to or approved of the executive's initiatives. In Posner and Vermeule's view, there is no reason to believe that government officials will overreact during times of crisis, and no basis for judging what executive officials have done, because they have the expertise and access to information that the rest of us lack.

I argue that Posner and Vermeule's argument for deference to the executive is misguided for three reasons. First, their assumption that there is a necessary and "straightforward tradeoff between liberty and security" is far too simplistic. Executives often sacrifice liberty without achieving an increase in security. Security may be advanced in a variety of ways without infringing on liberty. There is no reason to assume that sacrificing liberty is necessary to further security or that such sacrifices are warranted simply because the executive chooses to make them.

Second, Posner and Vermeule's account of the political dynamics of emergency periods fails to take into account significant factors that predictably contribute to overreaching by the executive, infringement of human rights, selective targeting of disempowered minority groups, and institutionalization of authorities that last well beyond the emergency itself. Once these factors are properly considered, there are strong reasons not to defer to executive power, especially in emergencies.

Third, the authors' argument that the executive is best situated to balance liberty and security in emergencies fails to consider the full range of qualities that one might want in an agency tasked to strike such a balance. Precisely because we rely so heavily on the executive to maintain our security, we should be skeptical of its ability to give sufficient weight to the liberty side of the balance. Judicial review plays an essential role in achieving an appropriate balance; deference to the executive undermines that role.

Keywords: executive power, judicial review, liberty, security