Online Symposium: Introduction to Part II of

by Roger Alford

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).

2 Responses

  1. The eminent academics that discuss on that blocg are familiar with the ECHR case-law, while I am not with US supreme court, I humbly admit.

    But in the tension between executive and judiciary in time of emergency, judgments like Ireland v. United Kingdom, 1978, concerning IRA terrorism, is a striking instance of how judicial review can be balanced with a greater “margin of appreciation” allocated to State (or executive power at a national level) when the life of the nation is endangered.

    Due process requirements are different during that time, the Court admitted. But it refused to yield its function to control that the derogations were strictly required by the exigencies of the situation.

    I don’t see why courts should necessarily defer to executive power. By doing so they deny the essence of their function.

  2. The four summaries of the thinking of the authors here suggest a level of naivete that is shocking. I guess the authors assume that they will never be on the bad end of any of those things that they say are fine – or someone they know. As Detlev Vagts might say, you could do that but it is against the law. I am troubled at the extent to which persons are willing to acquiesce to the Executive. Where is the skepticism of the Executive that was a traditional part of conservative views in favor of limited government?



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