Opinio Juris

Opinio Juris is very pleased to host for the next few days an online symposium on Eric Posner and Adrian Vermeule’s new book, Terror in the Balance recently published by Oxford University Press.

The format for this symposium will be familiar to those who followed the symposium we held three weeks ago on Michael Ramsey’s book, The Constitution’s Text in Foreign Affairs. We will begin with a few posts introducing the broad outlines of the book. We will then have comments from experts who will address various aspects of the book. Professors Posner and Vermeule will then respond to any of the posts as they deem appropriate. Because the book is clearly divided into two parts—the first offering broad theories of the security-liberty tradeoff and the second applying the tradeoff theory to specific contexts—we likewise will divide our discussion in a similar fashion. We will start with the theoretical arguments the first day or so and then focus on specific applications—such as torture, speech, due process, and military detention in subsequent days. We will then provide some concluding thoughts near the end of the week and offer Posner and Vermeule the final word.

In addition to Eric Posner and Adrian Vermeule, our other guest participants in this symposium include two national security experts: Louis Fisher of the Library of Congress and Professor Bobby Chesney of Wake Forest University School of Law. Of course, the permanent contributors to Opinio Juris will also add their reflections on the book.

We look forward to an exciting symposium and warmly welcome Eric Posner, Adrian Vermeule, Lou Fisher and Bobby Chesney to Opinio Juris.

The first part of Posner and Vermeule’s book offers a forceful theoretical defense of executive authority during times of emergency. The book offers a thoughtful and well-reasoned perspective on the cost-benefit analysis at play when government seeks the optimal balance between the competing goods of security and liberty. Posner and Vermeule argue that there is a Pareto security-liberty frontier at which no win-win improvements are possible. That is, at this frontier any increase in security will require a decrease in liberty, and vice-versa. From my perspective, the existence of this security-liberty frontier appears unassailable.

Given this frontier, Posner and Vermeule then offer their central argument of institutional competence. They argue that there are few or no domains in which it is true both that government choices about emergency policies are not accurate (on average) and that judicial review can make things better. They further argue that civil libertarians who subscribe to vigorous judicial review in times of emergency fail to identify a large and important set of cases in which government blunders or acts opportunistically during emergencies and in which judges can improve matters. I would suspect that it is this argument of institutional competence that is more likely to be challenged in the online discussions that follow.

But rather than attempting to summarize the book further, I have chosen a few key excerpts from pages 12-14 of the book that give you a flavor of their arguments:

“Our view is that judges deciding constitutional claims during times of emergency should defer to government action so long as there is any rational basis for the government’s position, which in effect means that the judges should almost always defer, as in fact they have when emergencies are in full flower. In times of emergency, judges should get out of the government’s way, because sometimes government will choose good emergencies policies, and even when it does not, judicial intervention may only make things worse, not better… [G]overnment functions no worse during emergencies than during normal times, and even when government makes mistakes during emergencies, judicial intervention cannot improve matters.

There is a straightforward tradeoff between liberty and security… At the security-liberty frontier, any increase in security requires a decrease in liberty; a rational and well-functioning government will already be positioned on this frontier when the emergency strikes and will adjust its policies as the shape of the frontier changes over time, as emergencies come and go. If increases in security are worth more than corresponding losses in liberty, government will increase security; but if reductions in security will produce greater gains from increased liberty, government will relax its security measures. A 'rational' and 'well-functioning' government here is one that makes no systematic errors of cognition, that is motivated to maximize the welfare of the whole polity, and that is as willing to increase liberty after an emergency has passed as it is willing to increase security when an emergency arises. Given the tradeoff thesis, judicial review in times of emergency cannot improve matters, because there is no reason to think that courts possessing limited information and limited expertise will choose better security policies than does the government.

The succeeding chapters in part I explain, and rebut, the leading criticisms of the tradeoff thesis…. On [the panic] theory, government officials panic or implement the panicked views of the populace, and the panic causes officials systematically to overestimate the benefits of increased security and to underestimate the costs of reduced liberty…. [But] fear can improve decisionmaking as well as hamper it, because fear supplies motivation that can overcome preexisting inertia…. In any event, there is no class of decisionmakers who can be insulated from panic at acceptable cost, not even judges.

In chapter 3, we consider the “democratic failure theory.”… On this picture, citizen-voters are not only rational, but self-interested, and this causes their governmental agents to supply security policies that benefit the majority at the expense of political, ideological, or ethnic minorities…. [This] theory fails on several counts…. It is equally consistent with the democratic failure theory that majorities will cause government to supply excessive liberty, rather than excessive security, and the costs of the searching judicial review recommended by the theory increase during emergencies, to unacceptable levels….

[Next] we consider the “ratchet theory” of emergencies, which suggests that there is a systematic bias in governmental moves along the security frontier: government will increase security and decrease liberty during emergencies, but will never readjust by increasing liberty after the emergency passes, or at least will do so less than it should…. Ratchet theories typically lack any mechanism that makes policies spill over into new areas or that makes them stick after the emergency has passed; there is no evidence for ratchets in the history of American security policy….

What these arguments have in common … is that they seem to be more sophisticated grounds for constraining emergency power than does a brute appeal to rights…. Unfortunately, for all of their intrinsic interest, these mechanisms and effects are too precious, too fragile, or too speculative to provide convincing grounds for impeaching governmental decisionmaking during emergencies. Nor do these mechanisms support a robust role for judicial review during emergencies, because judges are often subject to the same distortions of cognition or motivation, and because judges lack the information necessary to sort good governmental choices from bad ones.”

[Eric Posner is Kirkland and Ellis Professor of Law at the University of Chicago School of Law. Adrian Vermeule is professor of law at Harvard Law School]

Our thanks to Opinio Juris for organizing this symposium. The market has become crowded with post-9/11 books and articles discussing the role of courts in the war on terror. Most of this work goes after the Bush administration for violating civil liberties; after Congress, for giving Bush what he wanted; and after the courts, for (with a few exceptions) standing out of the way. The deferential attitude of the courts and the legislature was predictable, and we predicted it in our earlier work on which the book was based; but, in this, we were hardly alone. The pattern of deference to the executive during emergencies is a clear one in American history, and many others had noticed it. What makes our book unusual is that we defend this pattern (what we call the “deference thesis”). Our defense rests on an extremely simple institutional analysis that has two pieces. First, rights and liberties are not absolute; they are traded off against other things people care about, such as security, a tradeoff that is largely conducted in everyday legislative, judicial, and executive action (the “tradeoff thesis”). Second, during emergencies the relative institutional competence of the executive places it in a better position to respond to threats, and so Congress and the courts ought to defer to the executive more than in normal times. The bulk of the book is devoted to criticizing the stock methods for rejecting the deference thesis, including the panic theory (only judges can prevent the executive from panicking, or from exploiting public panic for nefarious ends), the ratchet theory (judges should reject short-term constraints on civil liberties, even if justified by a threat, because of their long-term ill effects), and the democratic failure theory (emergency-related measures are especially likely to be undemocratic). We argue that these theories, which are often rhetorically effective, and are endlessly repeated both in academia and the media, do not survive scrutiny.

In this opening post, we want to briefly address the role of the idea of “emergency” in our work, and the literature on post-9/11 legal theory. A common criticism of our view goes like this. “Even if we might agree with you that the other branches should defer to the president during an emergency, we are not willing to accept the possibility that the emergency will never end. And who determines when the emergency ends? If the president, what prevents him from maintaining the state of emergency indefinitely?” We think that much of the literature does trade on an ambiguity in the meaning of emergency, namely, are we in a state of emergency as long as al Qaida or a similar hostile organization remains in existence (in other words, forever), or are we in a state of emergency only in the immediate aftermath of a disastrous attack such as the 9/11 attack itself, or some future detonation of a nuclear bomb in Manhattan or Washington, D.C. (meaning not as of now, mid-August 2007). The former seems unacceptable, and the latter case suggests that we should have long returned to normalcy, and yet Congress keeps giving the president more powers – even the new Democratic Congress, which recently expanded the executive’s surveillance authority, at least for the time being.

The dichotomy is a false one, as can be illustrated with reference to another approach, that of Bruce Ackerman, in his article, The Emergency Constitution. Ackerman proposes that the president be given the unilateral power to declare an emergency; once he makes that declaration, he has enhanced executive powers, including, apparently, the power to detain without charges. Ackerman might be seen to embrace the second view, but in fact that is not the case at all. By giving the president the power to declare an emergency, he greatly expands the president’s powers, and his emergency statute or constitutional amendment would be implemented now, and left on the books, indefinitely, as far as we can tell. So Ackerman simply proposes to enhance the executive’s power; that is all. He does not want to enhance the executive’s power as much as we do, and he is a lot more formalistic about it, requiring an elaborate system of rules and procedures. But in the essentials, our views are similar.

So what we need to see is that 9/11 does not, or not only, justify giving the president temporary emergency powers. What it has done is effect a permanent change in the Constitution, a permanent (at least until conditions change dramatically yet again) enhancement of executive power at the expense of Congress and the judiciary. The reason for this constitutional change is very simple: the public is more vulnerable to a devastating terrorist attack today than it has been in the past, and the executive is in the best position to protect the public. The change is due to changes in technology and global conditions. In the past, terrorists could not reach the United States as easily as they can today, and they did not have the technological means to kill as many people as they can today. And when the United States was not a global player, foreigners had little incentive to commit terrorist acts on American territory—even at times when international terrorism was very common.

The answer to the question above, then, is that the “emergency” (in the broad sense) never ends, though perhaps (we’re not sure) the 9/11 emergency itself has ended; the Supreme Court’s Hamdan opinion can be read in that light. This means that the entire armory of war-on-terror techniques—spying, detaining, coercive interrogating, procedurally limited trying of suspects—will be used indefinitely. Certainly, we are comfortable making this prediction. We do not think a President Clinton or Obama with Democratic majorities in both houses will cut back on the FISA amendments, the MCA, the Patriot Act, or any of the war-on-terror practices of the Bush administration. The question, then, is not how do we know whether to trust the president when he says the emergency continues, but how do we know whether to trust the president when he says that he is using his enhanced powers against terrorists (or people who can reasonably be suspected of terrorist activities) and not against ordinary people. This question is not really new, however. As long as the presidency exists, people have wondered how we can trust the president to use his powers (for example, his power to command troops) in an appropriate manner. This is just a version of the “who guards the guardians” question, and the answer seems to be just a complicated mixture of electoral control, limited public surveillance of government activities, political competition, and so forth.

The costs of a powerful executive have been endlessly described, and there is no reason to repeat them here. It is enough to recognize that these costs are real. But no one has come up with a serious alternative to an institutionally dominant executive, and, in practical political terms, the issue was settled more than one hundred years ago. Given our executive-dominated system, the only question is whether, on the margin, the executive’s power should be enhanced or reduced when new challenges to national security arise. Unless one can make a plausible case that the presidency was too strong or just strong enough before 9/11 (and we have not seen such a case), the answer is clear.

[Louis Fisher is with the Law Library of the Library of Congress. He is the author of numerous books, including Presidential War Power (2d ed. 2004).]

In their book, "Terror in the Balance" (2007), Posner and Vermeule make a straightforward defense of placing emergency power in the President and advise federal courts and Congress not to interfere. I think their first two sentences in the Introduction are largely on point: "When national emergencies strike, the executive acts, Congress acquiesces, and courts defer. When emergencies decay, judges become bolder, and soul searching begins."

I am less confident about this assertion: "We maintain that the civil libertarian view, in any version, rests on implausible premises and is too weak to overcome the presumptive validity of executive action during emergencies" (p. 5). Presumptive validity? Why is that their starting point? Truman thought the Chinese would not intervene if he went north into Korea. Wrong. LBJ escalated the war in Vietnam on the basis of a second attack in the Tonkin Gulf that did not happen. Bush II justified war against Iraq on the basis of many assertions (Iraq-al Qaeda link, uranium ore, aluminum tubes, mobile labs, drones, chemical and biological weapons, etc.) that were false. I see no grounds for presumptive validity or any automatic trust in superior expertise that resides in the executive branch.

As a second point, I find it curious that the two authors regularly claim a lack of competence or expertise on their part to second-guess decisions by the executive branch in time of emergency. As they say, "as lawyers, we do not have any experience regarding optimal security policy" (p. 6). "We have no opinion about the merits of particular security measures adopted after 9/11. . . . We hold no brief to defend the Bush administration's choices, in general or in any particular case" (p. 9). They hesitate to criticize the internment of Japanese-Americans in WWII "on the merits, because we lack the necessary expertise to judge, even in hindsight, whether the action was justified, all things considered" (p. 113). Without explaining why, they later say that the Court's decision was "notorious" (p. 121). Why can they make a decision on the merits in one case but not the other?

If they are that agnostic, on what grounds do they take presidential power as of presumptive validity, compelling other branches to defer? Nowhere do they explain, and especially is that so in terms of the values and structures behind separation of powers, checks and balances, and the fear of concentrated power that are so basic to the U.S. Constitution.

They fault the Supreme Court in Rasul for challenging the position of the executive branch that Guantanamo provides immunity against any lawsuit brought by detainees. They find very "dubious" the Court's failure to follow its 1950 holding in Eisentrager (p. 258). They're not neutral here. Why not find "dubious" the Justice Department's argument? The detainees in Eisentrager had been charged and convicted. The detainees in Guantanamo had not been charged and convicted. Why show intellectual independence and skepticism against the judiciary but not against the executive?

A crucial issue in this conversation is that of presidential motivation. Explicit or implicit claims about presidential motivations underpin many worries about increased deference to the executive in emergencies. Yes, the executive’s capacities may be impressive, but its motivations are suspect (the suggestion often runs). Thus Kevin Jon Heller suggests, en passant, that the executive’s motivation is to maximize its power. What to make of this suggestion, and of the general problem of distrust of the executive?

Of course, the “executive” is to some extent a they, not an it, although it is plausibly a more centralized and hierarchical institution than the American Congress, which displays fairly weak party discipline. To clear away this issue, let us focus on the President, ignoring that in practice the President is constrained by the need to coordinate many different executive officers, offices and institutions. What motivates Presidents? No single thing. Different presidents have different motivations, and whatever their motivations, they are constrained in various ways by political circumstances. In Chapter 1 of the book (pp. 53-57), we recount the cross-cutting motives that Presidents and other executive actors hold, including the desire for power, the converse desire to duck responsibility, the desire to advance preferred ideologies (which may or may not include executive aggrandizement), and even the desire for leisure time. Following an important paper by my colleague Daryl Levinson (“Empire-Building Government in Constitutional Law”, Harvard Law Review 2005), we doubt there is any sense in which power-maximization is the dominant presidential motive, let alone the sole one. Moreover, Presidents cannot always act on their motives; they are bound down by political and reputational constraints, such as the need to please both a political party and the median general-election voter (for first-term presidents) or to please the historians (for second-term presidents). Some presidents are power-maximizers, some are not, and power-maximizers may be constrained to act as if they were not, depending upon political circumstances.

What is true, as Heller’s post exemplifies, is that distrust of presidential motivations is a real obstacle to interbranch and bipartisan cooperation in the war on terror. In other wars, such as the Civil War and World War II, presidents used credibility-generating devices to enhance public trust; thus both Lincoln and Roosevelt placed members of the opposition political party in their war cabinets, and President Clinton made a moderate Republican his Secretary of Defense. The current Bush administration can very plausibly be faulted for failing to employ these and other institutional devices for generating credibility and trust (devices that Eric and I discuss at length in “The Credible Executive,” University of Chicago Law Review 2007). These devices have their costs – the price of generating credibility is that the President surrenders some control over policymaking to political competitors — but for a President like George W. Bush whose credibility is exceedingly thin, the benefits would be greater still.

All that said, however, we ought not overlook a positive point: in an uncertain security environment, legislators often have overwhelming incentives to transfer new powers even to a President with very little credibility. The Democratic Congress recently gave the administration a temporary enhancement of its surveillance authority, in part because the administration warned of an increased risk of terror attacks. The legislators’ political calculus seems to have been that even if the warnings could not be verified, and even if there was no reason to trust the administration’s claims, still the warnings might be true, and the political risks of rebuffing them were too great; what if an attack actually occurred and legislators were blamed for their inaction? Executive credibility is important, but it is not the only thing that is important. The circumstances of emergency politics will often produce legislative deference even to a noncredible executive in matters of national security.

There is an issue that comes up repeatedly in discussions of national security law. Suppose we define “law” broadly to include the optimal allocation of institutional authority to establish and execute national security policy. On what grounds can academic commentators who lack expertise in national security policy argue for any particular allocation of such authority, in particular circumstances? If one is agnostic about the merits of first-order policies that one cannot judge, for want of expertise, how can one make a second-order argument that some institution is relatively more likely to make “good” national security policy? To know what counts as “good”, wouldn’t one have to judge the merits of first-order policies? In our book, Eric and I are agnostic about the merits of many national-security policies the executive has pursued during emergencies, in particular the post-9/11 emergency. But we urge the second-order claim that the executive does and should receive even more deference during emergencies than during normal times. Is this inconsistent? (Lou Fisher’s post can be read to suggest that it is).

On closer inspection, however, this looks like a pseudo-puzzle. In fact it is routine to make second-order judgments when, and indeed because, one cannot make first-order judgments. I may have no idea whether the diet prescribed by my Harvard-trained doctor is superior to that suggested by the diet guru Dr. Atkins; but I can make a coherent judgment to trust the former’s credentials and expertise over the latter’s. Where one cannot judge outputs or results, one can still judge inputs, such as training, resources and expertise. Moreover, it is often easier to make relative judgments than absolute ones. (How tall is the Sears Tower? I have no idea. But I am confident it is taller than the Washington Monument, whose height I do not know either). And the thesis we defend in our book is entirely relative: as one moves from normal times to emergencies, the executive’s comparative advantages increase and other institutions should shift more authority to the President. “The deference thesis does not hold that courts and legislators have no role at all. The view is that courts and legislators should be more deferential than they are during normal times; how much more deferential is always a hard question and depends on the scale and type of the emergency.” (Terror in the Balance, p. 6). Because it is so hard to know how much deference is correct, we plump for the historical level of deference, which has been very great during emergencies; those who would argue that the historical level has been too great have a kind of burden of proof.

Our particular second-order judgment about the relative benefits of shifting power to the executive during emergencies may be right, or wrong, on the merits. But there is nothing inconsistent in combining (1) agnosticism about first-order judgments of national security policy with (2) clear second-order judgments about relative institutional capacities. Indeed, to the extent (1) is correct, (2) is all the more pressing.

Let me say a few general words about one of Lou’s points, as endorsed and restated by Marty in his comment: “First, the Framers had seen up close what can happen when too much "emergency" power is concentrated in the executive (short answer: it wasn't pretty), and therefore established substantial checks (mostly structural, but, esp. in the Bill of Rights and laws of war, also substantive) to prevent that from happening here.”

I’d like to explain why we don’t say much about the founders in our book, which was not inadvertent.

The writings of the founders are interesting for what they say about their times. These writings also identify some of the basic problems, tensions, and tradeoffs of constitutionalism, though these are all commonplaces today. It is understandable that people continue to honor the founders, read their biographies, and (in academia) occasionally read their writings. The founders belong to a very select group of practical politicians who both thought intelligently about long-term issues of governmental structure and could write clearly about their ideas, and, of course, they managed to found a relatively humane (putting aside slavery) and advanced (ditto) constitutional order that lasted more than seventy years, or maybe more than 200 years, depending on how you think about the post-Civil War settlement. About few other politicians can one say something remotely similar. But the claim that their writings can provide useful guidance about presidential power today defies common sense. The founders wanted a stronger executive than had existed under the Articles of Confederation, but not an executive that was too strong, and they all had different ideas about what too strong or too weak meant. As guidance for today, where circumstances are unimaginably different to boot, this is worse than useless.

(Gary Lawson has written a paper called “Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis,” 87 Boston University Law Review (2007) (forthcoming), which argues that our theory is consistent with the original understanding. I don’t know whether he is right or not, but the more important point for present purposes is that it illustrates the chronic indeterminacy of arguments based on founding-era materials.)

This type of preoccupation with the founders and what they would do today, reminds me of a science fiction book that I read as a child, I think it was The Foundation Trilogy by Isaac Asimov. If I remember correctly (and I might not), the premise of this book was that a great statistician had founded a new republic, and, using his statistical skills, had predicted all of the problems it would face for many years into the future, and how these problems could be solved. So whenever the republic’s leaders faced a problem, they needed only to play the video that the founder had stashed away somewhere. (For a reason that escapes me, they couldn’t play the video or portions of it until a crisis was upon them.) I like to think that Asimov was teasing constitutional lawyers, biblical literalists, and others of this ilk (and it is the same ilk, in terms of habits of mind, I think) who believe that they can solve today’s problems by examining an ancient text written by an all-seeing author.

I realize that when one makes constitutional arguments to courts one needs to dress up one’s arguments with citations to the framers (though I find it extremely unlikely that any of these arguments have had any influence on courts in at least the last one hundred years). But I don’t understand why people would think this would be useful for academic debate. If academics on both sides of the issue could agree to debate the presidency, emergency powers, and the constitution without mentioning the framers, this alone would count as progress.

[Bobby Chesney is an Associate Professor at Wake Forest University School of Law, and the Chair of the AALS Section on National Security Law. He is the author of the forthcoming article Disaggregating Deference: The Judicial Power and Executive Branch Treaty Interpretations (Iowa Law Review 2007)]

As Adrian noted yesterday in his post “First-Order and Second-Order Judgments,” he and Eric state clearly in the book that “[t]he deference thesis does not hold that courts and legislators have no role at all.” The question thus is not whether the courts and Congress are to be disabled from checking the executive branch, but rather the extent to which their checking capacity will be limited. Significantly, Eric and Adrian concede that the extent to which deference should increase during emergencies “is always a hard question,” one that “depends on the scale and type of the emergency.” Having said that, however, they note that as a general proposition the pattern of past practice suggests “very great” levels of deference are given to the executive during emergencies, and they conclude that this pattern should be continued in the current climate of mass casualty terrorism threats.

I tend to agree with the comparative institutional-competence premises that undergird this theoretical framework, and accordingly I also agree that in many if not most security-related contexts a substantial degree of deference should indeed be afforded to executive branch judgments relating to security policy. But at the risk of jumping the gun on our subsequent discussions (I gather we are to focus on the theoretical framework for now, but will engage particular applications of the deference thesis soon enough), I want to articulate a trio of concerns that arise when one considers the practical operationalization of the substantial-deference precept.

My first concern has to do with boundaries. While some executive policies or actions relatively clearly fall within the category of security-related matters to which substantial deference would apply, the precise boundaries of that category are sufficiently uncertain to give me pause. Does the principle extend to some or all aspects of immigration policy, for example?

Perhaps the boundary concern can be set aside on the ground that, by definition, it fails to speak to core applications of the deference thesis. Even so, the very notion that there are distinctly marginal and core applications suggests that policies and actions to which the thesis might be applied vary by matters of degree in their relationship to security concerns. If that is correct, it seems to me that we should be wary of a one-size-fits-all approach to deference; the grounds for deferring may be stronger in some contexts than others, and as a result the degree of deference afforded arguably should be calibrated accordingly.

That brings me to my third concern, which has to do with the practical implementation of the deference concept (whether applied uniformly or on a sliding-scale). How precisely do we operationalize any commitment we might have to strong deference? Strong deference is not binding deference in this model, and thus it necessarily remains open for a judge to break with executive preferences in some particular cases. It is difficult, however, to put into words the triggering conditions under which it would be proper for a judge to do so. This does not mean that the strong-deference obligation has no bite, of course, but it does increase the probability that substantial deference will mean different things to different actors, or be implemented by them in different ways, even when confronted with comparable policies or actions. Indeed, something very much like that can be said with respect to the very muddled record associated with the implementation of the doctrine of judicial deference to executive branch treaty interpretations. I’ll try to say a bit more about this later in the week as we turn to the particular applications of the deference thesis that Eric and Adrian offer in the book itself.

In a comment to an earlier post by Eric, Marty Lederman has very helpfully raised the issue of how history is relevant to our discussions. I think it is relevant in three different ways: as originalist evidence, as evidence of what is desirable institutional behavior, and as evidence of what is politically possible. After some brief thoughts on the first two, I want to focus on the third, and pose a question to Marty and the other commentators.

Some constitutional scholars take founding-era history as evidence of the original understanding of the constitutional allocation of national security powers. Eric and I are not originalists, and as Eric points out in his earlier post, it is particularly difficult to think that the original understanding is useful when the issue is how to allocate national security authority among the branches of government in 2007. Emergencies by their nature present unanticipated circumstances, and the framers’ conditions were so remote from our own that it is hard to see why we should try to settle these questions by poring over their writings. Moreover, as circumstances change over time, the relevant constitutional texts and framers’ discussions become more and more indeterminate, because the framers were not focused on the questions that are critical today.

To be sure, founding-era history might be a bit useful in the second way, as evidence of what is desirable institutional behavior during emergencies. Perhaps the weaknesses of the national government under the Articles of Confederation show that an alliance of states acting through a legislative council can’t handle a truly national security crisis. But no one alive today seriously proposes that anyway, so that information is of low value. However, as one moves through American history closer to the present, the value of history as information increases, and historical examples accumulate. Taking into account the Civil War, World Wars I and II, the early Cold War, and the post-9/11 period, there is some information about what the presidency, the Congress, and the courts ought to do during emergencies. As Marty said in a different comment, perhaps the accumulation of historical examples embodies a kind of “collective wisdom,” though this seems a bit ambitious and too Burkean for my taste. More soberly, it just gives some information about or evidence of relevant propositions, such as that there are cycles of deference to the executive during emergencies, that these cycles do not generally stick (civil liberties bounce back when the cycle has run its course), and that executive government during emergencies has brought us through several major crises, although with clear abuses along the way. This evidence is hardly conclusive, but it is something; and if we lack lots of other good evidence, it might be decisive.

But what I most want to emphasize is that history is also relevant in a third way, as showing what is politically possible (whether or not desirable) during emergencies. Ought implies can; those who want to say that Congress or the courts should be less deferential than they historically have been during emergencies need to show, first of all, that less deference is politically possible. I am not at all sure that this can be shown, or that it is true. The pressures that cause Congress and the courts to defer to the presidency during emergencies are powerful; there is a kind of inevitable logic to Justice Jackson’s observation in Korematsu that “courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.” This point generalizes beyond military orders and Korematsu. In an earlier post I brought up the recent action of the Democratic Congress in voting the administration further surveillance authority, despite the administration’s lack of credibility. If the executive is warning of terror attacks that might be prevented by changing a relevant legal rule, what else can legislators realistically do?

So my compound question to Marty and others is: could things have been different, in a realistic political sense rather than a logical sense? Can we identify an emergency in, say, the past century in which we can realistically imagine Congress or the courts being substantially less deferential than they actually were? Can we really imagine that the World War II Congress would not have ratified Roosevelt’s internment order, or that the Supreme Court could have decided Ex Parte Quirin differently than it did? Of course counterfactual claims are tricky, but implicit counterfactuals already underpin oft-heard claims that Congress or the courts should (and thus could) have acted differently in past emergencies. My suspicion is that the more deeply we understand the historical conditions in which institutions acted, the more we will think that great deference to the executive in America’s historical emergencies was politically inevitable. And if so, the many commentators (not necessarily those participating here) who suggest that Congress or the courts should have acted differently in the past may be whistling in the wind.

The post 9/11 debate on presidential power has, inevitably, been overshadowed by the actual performance of the current president. I say “inevitably” but the confusion between the president and the presidency has greatly limited the value of the academic discussion, which has been unfortunate.

Consider, as an abstract proposition, the claim, which could be made at any time in American history, that “Because President X did Y [something bad], the presidency should be deprived of the power to do Y.” Stated in this bald form, the proposition is obviously false. No one thinks that because President Johnson mismanaged the war in Vietnam, presidents should be deprived of the commander-in-chief power. Nor does anyone think that because President Bush’s subordinates mismanaged the response to the Katrina hurricane, the presidency should be deprived of (statutory) emergency-response powers. Presidents have caused countless diplomatic fiascos, but no one has said that for this reason the power to engage in diplomacy should be lodged in Congress or somewhere else.

Why not? The answer is that the presidency is an institution that is occupied by a succession of persons, and the proper structure of this institution is independent of who happens to occupy it during a particular term (unless you have an extremely short time horizon). Of course, the behavior of the individual in power provides some evidence of how that presidency’s power can be used and abused, but one needs to take account of the evidence of the behavior of earlier presidents as well.

It turns out that nearly all of our presidents have been pretty ordinary people. Very few geniuses (fewer still after the era of mass democracy began), and a lot of mediocrities, at least, if one uses the standards that are regularly applied to presidents by academics and journalists. But I don’t think anyone thinks that the case for presidential power rests on the premise that the occupants of the offices will be extraordinary people. (The popular books about the follies of the Bush administration have countless precedents for all earlier administrations.)

As the founders understood (oops!), power not given to the presidency must be given to some other institution, and so, to stick within the framework of the federal government, the real question is whether we want to give power to the mediocre president, the mediocrities in Congress, the mediocre supreme court justices, or (I suppose) the mediocre heads of agencies. Or we could let the “people” handle the terrorists themselves.

To focus our intuitions, then, let us imagine that all the members of Congress are little Bushes (as people like Kevin Heller imagine him) – ideologues in part, practical politicians in part, but (apparently) not very smart and morally fallible or repulsive or whatever. The point is to avoid loading the dice and imagining that everyone in Congress is a Henry Clay (funny how rarely one hears any mention of who belongs to the current crop of congressional geniuses).

The case for giving emergency power to the president rather than Congress rests on the simple point that a multi-member body cannot act quickly, decisively, and secretly. Once we reject the assumption that the members of Congress are likely to be smarter than the president, I don’t see how any other factor would play a role.

The conventional critique of our views is not that Bush is an idiot, so we must be wrong, but that if presidents are given too much power, they will trample on civil liberties, favor supporters at the expense of others, or become dictators. The Bush-is-an-idiot crew overlook the fact that by the standards of earlier presidents, Bush looks rather good.

With respect to civil liberties, the infringements have been trivial compared to, say, Lincoln and FDR, and either less than, or on par with, the infringements that occurred during the early cold war and the Vietnam war. The worst one can say about Bush is that he has turned the clock back to the 1960s, though ordinary criminal law enforcement remains largely unchanged.

With respect to favoring supporters, there is no doubt that Bush, like most presidents, has tried to favor his supporters, but little of this has translated into war-on-terror policy. The main complaint has been the distribution of war-on-terror related pork, but this is business as usual in any administration.

With respect to becoming a dictator, Bush has, as nearly everyone acknowledges, been rather ineffectual as president. Crucially, unlike many past presidents (including Lincoln (through his generals), of course, but also, say, Johnson and Nixon) Bush has not used his emergency power to harass political opponents and their supporters.

Finally, in terms of overall competence in the execution of the war-on-terror, the Bush administration has been reasonably successful. We know that al Qaeda and its affiliates and epigones remain dangerous, as they execute attacks on the soil of other nations like Britain and Spain. Yet no such attack has occurred in the United States in six years. The real question is whether the Bush administration could have obtained the same result with less aggressive actions. I don’t know the answer to this question but I don’t think anyone knows. One can point to bungled investigations, implausible legal claims, and troublesome prosecutions, but this is just how governments operate, how they have always operated, and not much different from previous administrations – fallible people operating in a fog make mistakes. The incompetence claims are, I think, largely unsupported, no doubt infected by frustration with the Bush administration’s many other failures, most prominent among them that of the initiation and execution of the war in Iraq.

Meanwhile, Congress’s historical record is hardly sterling. Congress, too, has trampled on civil liberties (think of the McCarthy era) and favored supporters of the party in power. True, Congress has not acted in dictatorial fashion (at least, not since the Reconstruction), but then, as I said, a multimember body can rarely be an effective dictator. The beef against Congress is that it is weak, and no one today wants to be led during an emergency by a weak political institution, unless the alternative is extremely horrible. And, finally, Congresses have enacted a great deal of idiotic legislation.

Congress’s particular advantage is generally thought to be that it is a more representative institution, and thus perhaps confers legitimacy on the government in the way that president cannot. This is at best arguable. Arguably also, a many-minds style argument can be made that Congress aggregates information better than the presidency does, though I am skeptical about this. The president has greater control over agencies, and greater access to agencies’ information; agency heads know that their political fates are intertwined with that of the president, not that of Congress or any particular member of Congress.

Whatever the case, these advantages are less important for security issues than for other issues. This being the case, there is little or no public support for rolling back presidential powers (though there is a great deal of public support for having a new president). The president is weak but the presidency is as powerful as ever. What this means is that our next president, be it Obama or Clinton or Giuliani or someone else, will most certainly build, or at least rest, on Bush’s legacy. If a Democrat wins the election, you might expect some meaningless symbolic acts (such as the replacement of Guantanamo Bay with a hidden prison in Afghanistan), but don’t expect any changes in presidential powers. No serious presidential candidate, Taft-like, campaigns on a platform of limited presidential powers because no such candidate could possibly win.

As we have discussed, Part I of Posner and Vermeule’s book offered broad theoretical justifications for the historical deference that courts have afforded the executive in times of emergency, and rebutted systemic arguments of civil libertarians. In Part II of their book, Posner and Vermeule apply their tradeoff thesis to specific contexts. They emphasize that they do not endorse or criticize any particular counterterrorism measure used by the Bush administration. Rather they address the larger contextual question of the need for government to make tradeoffs, affirm the historical view that policy should become less libertarian during emergencies, and contend that courts should stay out of the way (p. 158).

Coercive Interrogation. In chapter six of the book they address coercive interrogation, which they define as (1) the application of force, physical or mental, (2) in order to try to extract information (3) necessary to prevent severed harms to others, such as terrorist attacks, suicide bombings, and the like. But recognizing that not all torture is coercive interrogation and vice versa, they narrow their discussion to the subset of coercive interrogation that counts as torture or as cruel, inhuman, and degrading treatment. They reject absolute deontological arguments almost out of hand and argue that catastrophic threshold deontology (i.e., the ticking time bomb scenario) is similarly unpersuasive. “Why exactly do deontologists want to say that saving a mere, say, two or three lives does not justify a single act of coercive interrogation?” (p. 188). They suggest that torture should be treated the same way that the law treats other forms of coercive governmental practices (such as police shootings, wartime killings, preventive detention, capital punishment, etc.). Such practices are subject to a standard set of regulations defined ex ante (punishment of officials who use these instruments without good justification; official immunity when used in good faith; various restrictions on the type of instruments that may be used, ex ante protections such as warrants, etc.). Recognizing the reality of tragic choices, they describe coercive interrogation as a “grave moral evil,” but argue that “sometimes evils, even grave ones, are also necessary.” (p. 187) This is particularly so during emergencies, where the “moral harms from coercive interrogation remain constant while the potential benefits rise. This is a simple application of the tradeoff thesis.” (p.215)

Speech and Due Process. In chapter seven of the book, Posner and Vermeule address censorship and “reduced due process.” The goal of the chapter is to show that there is “nothing exotic, special, or alarming about censorship and reduced process in response to threats to national security.” (p. 219). Regarding censorship, they point to the current British practice of censorship and four historical episodes of censorship in the United States (during the late 18th century, the Civil War, the First World War, and the 1950s) to suggest that censorship and suppression of political dissent is a traditional way to counter public and political threats. They argue that a member of fringe parties—like a communist in the 1950s or an Islamic fundamentalist today—poses a genuine risk even if he has not committed a crime. So to prosecute such people without violating due process, the government needs to rely on laws that directly prohibit such activity. “If the United States ever develops problems similar to those of Britain, where radical Muslims preachers urge their followers to engage in terrorism with apparent success, we are likely to see efforts by the government to censor such preaching and other forms of advocacy of terrorism.” (p. 232). As for reduced due process, Posner and Vermeule identify several ways that the government reduces public threats: selective prosecution, partial sharing of evidence, and political defenses. (p. 234-39). They also address how to relax process only for trials of suspected extremists and only during times of emergency, with particular emphasis on relaxed process during wartime and other emergencies and the importance of specialized tribunals that are not operated by regular Article III judges. Their central thesis is that during emergencies, judges and other decisionmakers do and should relax the rules to the extent that they are no longer consistent with the theory that animates them.

Military Detention. In chapter eight, the authors address military action, with particular focus on detention. The chapter is difficult to summarize so I will identify a few key points. Regarding indefinite detention, Posner and Vermeule express doubt that indefinite detention of combatants is a historically novel issue. They argue that while it may be unclear when the war on terror will end, if ever, the same may have been said in 1941. “Perhaps World War II might have degenerated into the sort of indefinite stalemate of superstates that Orwell imagined in 1949.” (p. 255) And as for the impossibility of a formal surrender, they suggest that a national struggle against terrorism—like the battles against polio, or the Mafia, or the Ku Klux Klan—may not offer a clear date of victory. But nonetheless the struggle against terrorism, like those other threats, someday may no longer be a live issue, with the problem solved or contained. On the detention of innocents, Posner and Vermeule are skeptical that the government would benefit from excessive detention or conviction rates, or that political constraints would permit the executive implementing such a preference. “The government seeks to incapacite and deter terrorists and attackers, but if the probability of detention or conviction bears no relationship to the individual’s actions, then there is no incapacitation and no deterrence… Perhaps the theory is that the government will weigh erroneous releases more heavily than erroneous detention, erring on the side of detaining the innocent. It is not all clear … that this is objectionable. If there is an asymmetry in the harms from erroneous releases and erroneous detentions … then there should be a corresponding thumb on the procedural scales.” (p. 257). Regarding Hamdan, Posner and Vermeule view it as untenable, unsustainable, and lawless. (p. 271). The Court failed to even mention the principle of deference to presidential interpretations of treaties and failed to conclude that the president’s interpretation was clearly incorrect. But the Court’s refusal to afford any deference to the president on matters of treaty interpretation, bearing on national security, is untenable in the long run. “To be able to respond to international crises, the president cannot be hemmed in by international treaties and constitutional limitations, as interpreted by judges…. Hamdan is just a typical reassertion of judicial muscle after an emergency has run its course…. [F]uture decisions will … gut Hamdan when the institutional pressures that give rise to judicial deference again become insistent.” (p 272).

The Role of Lawyers. Posner and Vermeule conclude with a brief comment on academic lawyers. (p. 273-75). Lawyers focus on process, and in emergencies where the stakes are high and time is of the essence, procedural excess can be disastrous. Substantive arguments on the merits of emergency policies fall outside of their domain of competence, or at a minimum, are unconvincing where they lack the information necessary to evaluate the choices made by national security experts. So academic lawyers offer speculative and implausible second-order tropes about process and consequences. As for their own agenda, Posner and Vermeule argue that they wrote the book in the hope that it will “clear the ground for government to react to emergencies, enabling it to adopt whatever policies survive review by national security experts and the political process. Such policies will often be mistaken, but it is very hard for lawyers to know which ones are mistaken, and in any case nothing in the lawyers’ expertise supplies the necessary tools for improving on the government’s choices.” (p. 275).

I agree that the concerns that Bobby Chesney identifies are real and important. There are no answers at the level of theory; the scope and level of deference must be worked out at the level of practical politics. In practice, as we have seen, the president (and presidents generally) press for maximal powers where they think they need them, subject to political constraints. President Bush has not argued that his commander-in-chief power gives him the right to dictate educational policy because such an argument is a loser politically as well as legally. The courts defer with respect to some actions and not others. Presidents often acquiesce when courts refuse to defer, but sometimes they put up varying levels of resistance—appealing up the chain, or jurisdiction-shopping until they get a better result, or exploiting loopholes, or buying for time, or in rare instances (FDR, Lincoln) disobeying or threatening to disobey judicial orders. Public and elite responses to the performance of the relevant actors gradually determines the practical limits on presidential, judicial, and congressional action. I’m afraid we don’t have anything illuminating to say about how boundaries should be determined in practice, or how context-specific deference ought to be.

But we do want to avoid the legalistic impulse to try to determine in advance what the rules should be. (Again, this is the impulse behind Ackerman’s Emergency Constitution.) There are obvious benefits from having rules stated in advance, but the rules/standards literature makes clear that there are costs as well. Emergencies are not like the revenue-generating behaviors that are regulated by the tax code. Because it is hard to anticipate the next emergency, rules determined today will inevitably be poorly suited to the emergency that occurs tomorrow. On balance, the unpredictability of emergencies argue in favor of general standards of conduct rather than rules.

On a somewhat related issue, some of the comments might give readers a misleading impression that we take a dichotomous view: that the choice is between presidential dictatorship or not, and we opt for the former. Bobby Chesney correctly notes that the real debate is about the proper location on a continuum. To pick silly numbers for clarity, suppose 0 is pure executive government, 100 is pure legislative government, and 50 is some mix of deference and congressional/judicial oversight. We do not argue for 0, nor does anyone argue for 100. To pick more silly numbers, suppose that on most issues in normal (non-emergency) times the system is at 50. During emergencies, it typically goes down to (say) 20. Some civil libertarians seem to argue for, say, 40 or even 60 during emergencies. We want to say that 20 seems right—or, more precisely, there is no reason for thinking that 20 is wrong. Civil libertarians make a series of arguments that 20 is too low—the panic argument, etc., as we noted earlier. In trying to refute these arguments, we are not committing ourselves to 0; we are committing ourselves to 20 for the duration of the emergency.

A complicating factor, which I referred to in an earlier post, is the existence of other trends—technological, cultural, geopolitical—that affect the optimal location on the continuum. So it may be that as weapons become cheaper, smaller, and more destructive, we will have to reconcile ourselves to a long-term decline from 50 to, say, 40. On the other hand, if foreign political extremism fades (as it has in the past, and will surely do again), the optimal point could rise from 50 to some higher number.

I wanted to respond to a key section of Posner and Vermeule’s book rejecting absolute prohibitions of torture. They argue that very few moral philosophers have held to the position that coercive interrogation is absolutely impermissible as a violation of rights rooted in human dignity or autonomy. As discussed in the previous post, they suggest that an absolute prohibition, or even one with a catastrophic threshold, is unpersuasive. They argue that a more convincing approach is to treat coercive interrogation the same we that we treat other coercive measures of the government. “It is fanatical on deontological grounds that rights against coercive interrogation should not be overridden to prevent serious harms to others.” (p. 187).

What I like about their argument is that they put the moral question in starkest of terms. At bottom the tragic choice they posit is “Shouldn’t we authorize the commission of one act of torture to save several lives?” Put in those terms, it is not an easy question. But I think there are valid deontological responses.

In my view, at a minimum, the absolutist position deserves greater respect than they provide in their book. In particular, I think it is quite inaccurate to say that few hold to this position. The political majority in the United States holds to this position, as reflected in the McCain Amendment. The military forces reflect this absolutist position in the Army Field Manual 2-22.3. Over seventy-five countries accept this position as signatories to the Convention Against Torture. Coercive interrogation as a technique in purely domestic criminal investigations is likewise prohibited by law, despite the fact that the moral dilemma they pose could apply with equal force in that context. And a 2005 opinion poll in the United States indicate that 32 percent of respondents said torture against suspected terrorists is never justified. All of these are expressions of moral and legal conclusions that coercive interrogation is never justified. Rather than reflecting a “fanatical” position, I would suggest the norm is that coercive interrogation is not on the table for trading.

Second, Posner and Vermeule argue that coercive interrogation should be treated like other forms of coercive governmental practices, such as lethal force by police officers, wartime killings, and capital punishment. That is, like those other coercive practices, torture should be authorized in very limited circumstances and regulated ex ante. But torture could (indeed does) fall into the category of coercive governmental practices that are subject to prohibition, not regulation. These include the killing of wounded soldiers, the use of landmines that inadvertently kill innocents, the use of forced labor, and the use of cruel and unusual punishment to deter and punish criminal offenses. All of these fall within the liberty-security frontier and yet they are not accepted as legitimate part of any tradeoff between liberty and security.

Third, Posner and Vermeule simply assume that torture is a lesser evil than, say, the use of lethal force by police officers. They reason that if it is permissible to kill a person to save many innocent lives, it follows a fortiori that coercive interrogation would likewise be permissible in those circumstances. I genuinely wonder if that is so. As the Supreme Court has stated in Trop v. Dulles, “[w]hatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment … it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.” What I think the Court is getting at is that some punishments may be as cruel, indeed more cruel, than death itself. As a heuristic device, ask yourself which would you fear more, being burned at the stake just short of expiration of life, or a painless lethal injection that results in death? The answer is not obvious.

The essence of the absolute prohibition is, as Posner and Vermeule suggest, a concern about human dignity. Some things cannot be traded, even though the consequences of that position are great. In some respects the discussion in chapter six of the book paints Posner and Vermeule as situational ethicists in which there are no moral absolutes, only general welfare maximizing opportunities. I seriously doubt that Posner and Vermeule actually take this position, which historically has been used to justify infanticide, slavery, and similar evils.

In Terror in the Balance, we put aside the view that there is an absolute moral prohibition on coercive interrogation necessary to save third-party lives. For one thing, we claimed, it is very hard to find moral philosophers who defend that view; most waffle, in the end, by adopting some variant of the view that there is a "catastrophe" exception to the moral prohibition, so that if enough lives are at stake a utilitarian override kicks in. Roger Alford, our gracious host, suggests (among other things) that we radically understate the appeal of absolutism. He points out that the McCain Amendment and various sources of international law create an absolute legal ban on "torture," of which coercive interrogation is a subset.

But this point conflates the moral question with the legal question. There is no doubt that most people believe that coercive interrogation should be illegal, and indeed it is; but they also believe that it would be morally permissible or even obligatory for officials to torture, in some vaguely defined set of extreme circumstances, at least if those officials openly take responsibility for their actions and throw themselves on the mercy of juries and the public. McCain himself, in an article in Newsweek, wrote that torture should be illegal, but that in an "urgent" ticking time-bomb case "an interrogator might well try extreme measures to extract information that could save lives. Should he do so, and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted." In this, our guess is that McCain speaks for many Americans. (In the Pew Research Center poll that Roger links, "15 percent of respondents said that the use of torture against suspected terrorists in order to gain important information can often be justified, while 31 percent said it is sometimes justified, 17 percent said it is rarely justified and 32 percent said it’s never justified." So despite the legal ban, 63 percent believe that torture is at least sometimes justifiable; we read this to mean morally justifiable.)

We label the view that McCain defends the OAF view -- "Outlaw and Forgive" -- and our objection to it is not that nobody holds it, but that it is bad in various ways: self-defeating, unstable, and socially undesirable. There is no need to repeat those points here. Conceptually, however, the undoubted legal prohibition on coercive interrogation does not show that anyone holds the absolutist moral view. Law and morality are not coterminous, in general or in the debate over coercive interrogation.

I’d like to steer the discussion to