Some Initial Thoughts on Posner and Vermeule

by Kevin Jon Heller

Well, at least they’re honest. Posner and Vermeule admit that the massive expansion of executive power that has taken place under the Bush administration is no anomaly, no temporary response to the horrors of 9/11. On the contrary, they insist that by demonstrating that “the public is more vulnerable to a devastating terrorist attack today than it has been in the past,” 9/11 brought about — and justified — no less than “a permanent change in the Constitution, a permanent… enhancement of executive power at the expense of Congress and the judiciary.”

One way to reject Posner and Vermeule’s valorization of unchecked executive power is to reject their assumption that we are now more vulnerable to a “devastating terrorist attack” than we were in the past. That assumption seems far from self-evident. (Although, to be sure, the Bush administration has done everything in its power — invading Iraq, abandoning the war in Afghanistan, neglecting domestic security, etc. — to make it something of a self-fulfilling prophecy.) Still, their assumption may be correct. It’s an empirical question, one that I don’t have the expertise to answer.

Even if Posner and Vermeule are correct, though, our increased vulnerability to terrorist attack does not — by itself — justify allowing 9/11 to effect “a permanent change in the Constitution.” That enhancement only makes sense if the executive’s pre-9/11 powers could not have prevented 9/11. If they could have, permitting the executive to engage in historically-unprecedented “spying, detaining, coercive interrogating, [and] procedurally limited trying of suspects” is completely unwarranted, an unnecessary and unacceptable trading of liberty for “security.”

So, the $64,000 question: could the executive’s pre-9/11 powers have prevented 9/11? A definitive answer, of course, is not possible. Still, it’s worth noting that the Republican chair of the 9/11 Commission concluded that human error, not inadequate executive power, was responsible for 9/11 — and that in the absence of the human error, 9/11 could in fact have been prevented:

For the first time, the chairman of the independent commission investigating the Sept. 11 attacks is saying publicly that 9/11 could have and should have been prevented, reports CBS News Correspondent Randall Pinkston.

“This is a very, very important part of history and we’ve got to tell it right,” said Thomas Kean.

“As you read the report, you’re going to have a pretty clear idea what wasn’t done and what should have been done,” he said. “This was not something that had to happen.”

Appointed by the Bush administration, Kean, a former Republican governor of New Jersey, is now pointing fingers inside the administration and laying blame.

“There are people that, if I was doing the job, would certainly not be in the position they were in at that time because they failed. They simply failed,” Kean said.

Admittedly, Kean may be wrong. At the very least, though, Posner and Vermeule need to defend their claim that our ostensibly new vulnerability to terrorism requires the “indefinite” use of the “entire armory of war-on-terror techniques — spying, detaining, coercive interrogating, [and] procedurally limited trying of suspects.” Unfortunately, they do not seem inclined to do so, apparently believing that the burden of proof is on those who would argue that the executive’s new techniques are not necessary; as they say, “[u]nless 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.” With due respect, I think the opposite is true: that the burden of proving the necessity of a “a permanent… enhancement of executive power at the expense of Congress and the judiciary” falls on those who believe that such a radical redrawing of constitutional lines is, in fact, necessary.

Which leads me, finally, to a question — one that I hope Posner and Vermeule will address during this symposium. I am willing to accept, if guardedly, that the unpredictability of terrorism may sometimes justify giving the executive more freedom to react quickly to the possibility of terrorist acts. If terrorists were ever about to detonate a nuclear weapon in downtown Chicago, I would hope that the executive would do whatever it takes to neutralize the threat, legal or otherwise. What I fail to see, however, is why the post-9/11 threat of terrorism requires the legislature to defer to an executive determination that a particular counterterrorism technique is necessary for national security. Absent the highly unlikely situation in which an imminent terrorist threat requires the executive to ask the legislature to approve a new technique very quickly, there seems to be no reason to believe that the legislature is any less competent than the executive to assess a particular technique’s practical utility. Indeed, given enough time to deliberate, it seems to me that the legislature is better situated to make that determination than the executive, whose institutional interest in maximizing its own power will almost always lead it to see a new counterterrorism technique as desirable.

http://opiniojuris.org/2007/08/20/some-initial-thoughts-on-posner-and-vermeule/

4 Responses

  1. Their thinking only works if you think rights are relative and that there is a tradeoff. If rights are absolute – and I would posit that some of them are absolute – no tradeoff is permissible and the court is to step in when the government does not enforce those rights. If the courts are not willing to step in then we have a defective court and a defective democracy. Guess you have to be a Japanese interred to feel strongly about the idea of absolute rights and the issue only being the willingness of the government to enforce one’s rights.

    Best,

    Ben

  2. Ben,

    I think you raise an interesting point about absolute rights and the impossibility of trading off certain rights. That topic will be particularly timely as we discuss Part II of the book in the next couple of days. Posner and Vermeule do discuss deontological arguments, particularly in chapter six on coercive interrogation and torture. I also think if you look at pages 40-41 of their book the indicate that they view rights as deontological constraints, but not absolute. In other words, they view rights as tradeable to optimize the general welfare. As you suggest in your comment, Posner and Vermeule say explicitly on page 41 that “we will generally ignore approaches to evaluating security policies either that are strictly nonconsequentialist or that posit absolutist theories of rights.”

    Roger Alford

  3. Roger,

    Isn’t that precisely the problem – “we will generally ignore approaches to evaluating security policies either that are strictly nonconsequentialist or that posit absolutist theories of rights.” Well if they ignore that then you can create an elegant theory but it just happens to leave to the side fairly basic parts of the Universal Declaration of Human Rights, the ICCPR, other conventions and customary international law and some would say constitutional law (I will leave aside the natural law for now). If they are not willing to be absolutist on anything then everything is tradeoffable. Automatic deference might feel easy in that setting – but it is a deceptive feeling.

    Best,

    Ben

  4. Still, it’s worth noting that the Republican chair of the 9/11 Commission concluded that human error, not inadequate executive power, was responsible for 9/11 — and that in the absence of the human error, 9/11 could in fact have been prevented:

    Virtually every disaster in human history could have been prevented (or at the very least mitigated) by the absence of human error.

    Even the most powerful Executive would be limited both by the information available and the ability of his underlings to correctly carry out his orders.

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