Two Questions

by Kevin Jon Heller

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?

http://opiniojuris.org/2007/08/21/two-questions/

2 Responses

  1. I have two questions for Professors Posner and Vermeule:

    1) As far as the security/liberty trade-off, as I understand the argument, a decrease in liberty increases the amount of information available to law enforcement. This increased information decreases the likelihood of a terrorist attack, thus increasing security.

    However, wasn’t the problem with 9/11 that the government had enough information to prevent the attack, but lacked the resources to mine the data it did have? If so, then wouldn’t increased reasources dedicated to getting the most out of the info we do have, using liberty-perserving means, take us out of this trade-off between security and liberty.

    2) This is totally off-topic, but I can’t resist asking and I think it would be really interesting to hear what you have to say. There has been a decent amount of debate on this board as to whether the field of international law has been “captured” by far left elements. I would point out the ordeal with Professor Goldsmith at Harvard as one example. Perhaps one that hits too close, but a good example nonetheless.

    Given that both of you offer a different take on many of the conventional wisdom coming from public international legal academics, what do you think? Do you ever feel pressured given you have a different view? Would you feel different if you were a junior faculty? Is this a problem, and if so, what should be done?

  2. “Given that both of you offer a different take on many of [sic] the conventional wisdom coming from public international legal [sic] academics, what do you think? Do you ever feel pressured given you have a different view? Would you feel different if you were a junior faculty[sic]? Is this a problem, and if so, what should be done?”

    What a set of obsequious, cloying, and mawkish queries. I am not certain if they will take your Campuswatch strawman bait, but it has all the analytical rigor of a Neil Cavuto-George Bush interview. “What’s it like to be a persecuted academic iconoclast?” “Shouldn’t we just strip tenure from all of those Churchillian (not Winston), evil leftist academics I don’t agree with?” Any serious scholar addressing the effectiveness/enforceability of international law knows they have to address Posner, Goldsmith et al.’s scholarship, which has contributed susbtantially to the dialog. The fact that one of the leading international law blogs features a symposium on this book should answer your questions.

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