As I read Posner and Vermeule’s latest — and very interesting — posts, two questions occurred to me. Perhaps they would be gracious enough to answer them.
First, Posner writes that “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… Yet no such attack has occurred in the United States in six years.” If (God forbid) another 9/11 happened tomorrow, would that invalidate the expansion of executive power that is at the heart of the Bush administration’s approach to the war on terror? Or would it reinforce the need for that expansion?
Second, Posner writes that where “0 is pure executive government, 100 is pure legislative government, and 50 is some mix of deference and congressional/judicial oversight,” he and Vermeule “are committing ourselves to 20 for the duration of the emergency.” Given that they believe congressional/judicial oversight can be warranted even in times of crisis, is there an aspect of the Bush administration’s prosecution of the war on terror — a particular technique or a particular application of a technique — that they believe would not survive such oversight?