Terror In the Balance: Security, Liberty and the Courts

Privacy and Security

Article Snapshot

Author(s)

Eric Posner and Adrian Vermeule

Source

Oxford University Press, 2007

Summary

This book considers how government should act in emergencies.

Policy Relevance

The President and executive branch are better judges than courts of what actions are appropriate in a crisis such as a terrorist attack.

Main Points

  • Throughout the history of the United States, courts defer to Presidential actions in crises such as the terrorist attacks of 9/11. Afterwards, civil libertarians argue that government power expanded too far, and that emergencies cause constitutional failures.

  • Another view is that the flexible reaction to emergencies in the United States, where the Constitution or democracy have never collapsed, is a healthy reaction to crisis. Long run harm is unlikely.
    • When new threats appear, it can be appropriate to reduce rights.

  • The executive branch can act quickly and without the procedural hurdles that burden courts and Congress in emergencies. It is less likely to make errors in a crisis.

  • Neither civil libertarians nor courts are in a good position to judge the merits of the policies adopted after 9/11, such as coercive interrogation or detaining enemy combatants offshore. These policies might be wrong, but it can be very hard to tell.

  • The best place for the merits and dangers of policies such as ethnic profiling to be judged is in the executive branch.

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