Terror in the Balance: Security, Liberty, and the Courts.(Book review)

TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS. By Eric A. Posner (1) & Adrian Vermeule. (2) New York, Oxford University Press. 2007. Pp. 328. $29.95.

This review of Eric Posner & Adrian Vermeule's book Terror in the Balance Security, Liberty and the Courts is constructed in part as a response not only to this scholarly work but also to recent executive and policy directions which suggest that substantial deference should be given to the executive in times of crisis, that courts should defer competence and that any harms inflicted upon civil liberties by executive action are overstated by interests with little competence in the core arena of security.

Professors Posner and Vermeule open their book by pithily stating that "[w]hen national emergencies strike, the executive acts, Congress acquiesces, and courts defer" (p. 3). The book has a strikingly limited American reach, identifying six periods of emergency during American history, (4) from which they set out two alternative assessment points. One assessment is a history of constitutional failure, marked by political panic, irrational policy-making, and an exaggerated emphasis on security--this they situate as the civil libertarian view (p. 4). Another is the view (theirs) that emphasizes political and constitutional success.

Congress/Parliaments and courts act rationally, civil liberties are appropriately compromised, premised on the rational view that they interfere with the effective elimination of threat. Policies make mistakes, but none are catastrophic, and when the emergency wanes the basic constitutional structure rebounds robustly back (p. 4). Posner and Vermeule hold that both assessment points have normative implications, and are convinced that their thesis holds true of a tradition of judicial and legislative deference that has served the United States, including by extension other democracies, and that "there is no reason to change it" (p. 5). Moreover, they go on to assert that the civil libertarian view "... rests on implausible premises and is too weak to over-come the presumptive validity of executive action during emergencies" (p. 5).

The core argument dovetails with the strident policy voices (as well as other academic voices), (5) that affirm not just the need for a strong executive role in emergency but robustly assert that by corollary the role of the courts and other checking devices should be held back. This book review challenges both the "over-powerful" executive thesis, and further rejects the position that courts are inherently suspect or weak in times of emergency. The Posner and Vermeule's position is provocative and attractive, if stridency is a virtue, but its foundations are weak empirically, theoretically and comparatively.

I. CIVIL LIBERTY ADVOCATES 'SEE' ONLY PANIC RESPONSES BY STATES

Terror in the Balance paints civil libertarians (broadly brushed), and academics that intellectually come out on the liberty side of the equation, as unfailing; grounding their rationale on a presumed panic response by states in times of crisis (pp. 59-86). Scholars such as Cass Sunstein and Bruce Ackerman stand among the accused. (6) A particular claim is that civil libertarians assume governments do not act rationally when they choose to aggrandize their crisis powers, and the counter-claim lies in the vaunted rationality of executive actors. This stylized position deserves significant critique. The view is particularly weak when any substantive comparative assessment is undertaken. (7) It is generally accepted that a certain trade-off exists between liberty and security. Neither interest is absolute. A proper balance must be struck between these conflicting values and principles. But such balance is, in and of itself, flexible and floating. The relative importance of the competing values and interests shifts from time to time and with it so does the point of balancing. Of course, one major problem with conducting such acts of balancing in time of great upheaval is that under extreme circumstances, when panic, fear, hatred and similar emotions prevail, rational discourse and analysis are likely to be pushed aside in formulating the nation's response. When faced with serious terrorist threats or with extreme emergencies, the general public and its leaders are unlikely to be able to accurately assess the risks facing the nation. Balancing--taking into consideration the threats, dangers, and the risks that need to be met, the probability of their occurrence, and the costs for society and its members of meeting those risks in difference ways--may be heavily biased, even when applied with the best of intentions. Posner and Vermeule give little credence to and/or dismiss such risks in their assessment of the efficiency of emergency responses undertaken.