Online Symposium: Opening Remarks

by Eric Posner and Adrian Vermeule

[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.

10 Responses

  1. There is another and perhaps more important dimension to this question. Laws (FISA for example) are often ambiguous in their application to any current situtation. The executive itself can adopt two policies with regard to uncertainty. It can back off and avoid any grey area to ensure that no subsequent court can decide that it crossed a line, or it can crowd right up against its interpretation of the boundary on what is permissible. Before 9/11 administrations adopted the first policy as if the worst possible thing would be for some judge to declare a program illegal. After 9/11, this administration acted as if everything was permitted unless it was obviously illegal (and so far they have not been definitively found wrong in any important court cases).

    It will be useless for judges to defer to administration decisions in a crisis if the administration, afraid of being second guessed by Monday morning quarterbacks, adopts a policy of self-censorship to the point of paralysis. Willingness by the executive to reasonably define the clear legal boundaries, and make its own decisions about ambiguous language without waiting for judicial approval is also a requirement. Given that the executive can make its decision today, but the courts take two or three years to render a decision, this seems a wise and necessary practice.

  2. Let me see if I have this straight:

    If the President decides that it’s a good idea to adopt policies and practices modelled on the Hitler administration in Germany, the Stalin administration in the Soviet Union, or the administrations of George III or Charles I in Britain, that’s just perfectly connsistent with the US Constitution, and perfectly OK with the two of you, who profess to be expounding something which can be meaningfully described as ‘law’ in some significant sense.

    Is that correct?

  3. Charles,

    Posner and Vermeule address your concerns in the book. On pages 38-39 they have a brief discussion on the tendency to discuss emergency powers through the lens of Weimar historiography and politics. Here is a brief excerpt that I think is responsive to your question:

    The specter of Weimar’s collapse, in which repeated invocations of emergency powers were followed by an authoritarian takeover, looms ominously in the civil libertarian imagination…. Weimar has received too much attention in this setting. Civil libertarians invoke the shadow of Weimar to imply, and occasionally say, that expanding government’s powers during emergencies will produce another Hitler. It will not, in today’s liberal democracy’s anyway; and if it did, there would be nothing that civil liberatrian judges could do about it. Emergencies always pose novel challenges; information about the new post-emergency conditions is at a premium, so the value of historical analogies is low. Weimar was an unconsolidated and institutionally shaky transitional democracy extant some three-quarters of a century ago; its relevance for emergency politics in consolidated modern democracies is not obvious, and we will see evidence that transferring large chunks of power to the executive during emergencies need not, and usually does not, end in dictatorship. The real risk is that civil libertarian panic about the specter of authoritarianism will constrain government’s ability to adopt cost-justified security measures. We return to these points throughout.

    I also think it is worth noting that in the current age of emergency action to respond to terrorism the only world leader moving toward dictatorial power is Hugo Chavez. And his appeal to constitutional reform and life tenure has nothing to do with terrorism.

    Roger Alford

  4. “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.”

    Rights enforcement may not be absolute, but many rights are absolute in normal times. And some rights are absolute even in an emergency situation. The “tradeoff thesis” masks the point that there is no tradeoff on certain things even in an emergency, there is only the lesser willingness to enforce the right.

  5. Well “Don’t worry, be happy” isn’t exactly an argument, and if this really is a democracy there ought to be something that judges and citizens can do about it.

    Why exactly should a judge sworn to serve impartial justice “defer” to criminal acts?

    And if their opinions are irrellevent in any case, what possible reason is there for doing anything other than scrupulously adhering to the law?

    All this boils down to is a claim the only purpose of the judiaiciry is to ratify executive decision without the least regard for the facts or the law.

    What needs to be explained here is why we need any courts or laws at all. The executive is perfectly capable of issuing decrees without the assistance of a legislature, and deciding cases by administrative review without the inefficient processes of a court.

  6. Charles,

    I think you mean “why do we need judicial review of the actions of the political branches.” The British would say “you don’t.” Americans have a different perspective, but not markedly so for political decisions of the executive branch in times of emergency. Of course, there is political accountability for the actions of the executive in any modern democracy. Indeed, most would argue that accountability was on clear display during the recent elections of 2006.

    Roger Alford

  7. Roger,

    What about Putin?


  8. Kevin,

    Yes, you are right about Putin moving strongly in the direction of authoritarianism. Could easily add him to the list. Probably one could distinguish it as a fragile, young, and shaky democracy that is more suspectible to a Weimar analogy than other modern democracies. And again not sure if his move toward authoritarianism is based on concerns about terrorism, although it is possible with the war in Chechnya.

    Roger Alford

  9. Well the Consitution says we need judicial review to decide cases in law and equity, etc. The argument here is that there are cases in law and equity tthat the courts should abstain from deciing on the theory that the executive branch is more competent to decide questions of law than the courts are on certain subjects. I’d have a much easier time buying the notion that the courts are more competent to hire and fire US attorneys than the executive branch is, not that I’d ever claim that the Constitution permits it.

    Yet here we are, seriously discussing the thesis that the judicial branch of our government should abstain from performing its constitutional duty because it would be inconvenient for the executive branch to actually obey the law (according to them).

    It’s quite obvious that we don’t actually have much real political accountability in this country, and what little we do have is disastarously slow and prone to corrupt influences. If we had the British system at least Prime Minister Pelosi would be unscrewing us from Iraq right now. As it stands, we are going to have to wait aty least another year and a half. The courts have their problems too, but I’d say that they are far more sincerely accountable to the law than the two political branches are to the people.

    I just don’t see this as a real problem. I do think there is a place for judicial deference where there is legitmate scope for executive judgement, but the notion that the executive can just ignore any law they please in the name of national security is absurd.

    Torturing people is a crime, period.

    Any judge who “defers” to such a crime is aiding and abeting the crime, period.

    And terrorism has nothing to do with it: there isn’t any argument that would apply to a “terrorist” that could not be used to justify torturing or unlawfully detaining a two-year-old child.

    That’s the bottom line for me here — I want to know if Profs. Posner and Vermeule are willing to defer to Bush and Cheney if they decide that national security requires them to roast a two year old girl alive over an open fire and then eat her for dinner.

    And if not, why not — and who decides where the line is?

  10. If the quotation that Roger provides from pages 38-39 of Posner and Vermeule’s book is the best they’ve got, it’s mighty thin gruel. One does not have to predict that Posner and Vermeule’s advocacy of emergency executive powers will give rise to some form of dictatorship to recognize that the Weimar Constitution’s Article 48 was a flaw that proved fatal. The question for P and V is then, why should we import such a flaw into a system that does not demand it. Put another way, I wonder why, when confronting a familiar challenge to our notions of constitutional democracy, P &V grasp for the [Carl] Schmittian solution rather than exploring the myriad liberal-democratic and social-democratic alternatives.

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