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22 Aug

I’d like to steer the discussion toward the question of military detention for a moment. Military detention has been and continues to be the subject of extensive litigation, and it therefore presents a series of occasions implicating the deference thesis. Eric and Adrian discuss the matter from several angles, including one that strikes me as particularly important: procedural safeguards (i.e.,...

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21 Aug

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...

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21 Aug

In Terror in the Balance, we put aside the view that there is an absolute moral prohibition on coercive interrogation necessary to save third-party lives. For one thing, we claimed, it is very hard to find moral philosophers who defend that view; most waffle, in the end, by adopting some variant of the view that there is a "catastrophe"...

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21 Aug

I wanted to respond to a key section of Posner and Vermeule’s book rejecting absolute prohibitions of torture. They argue that very few moral philosophers have held to the position that coercive interrogation is absolutely impermissible as a violation of rights rooted in human dignity or autonomy. As discussed in the previous post, they suggest that an absolute...

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21 Aug

I agree that the concerns that Bobby Chesney identifies are real and important. There are no answers at the level of theory; the scope and level of deference must be worked out at the level of practical politics. In practice, as we have seen, the president (and presidents generally) press for maximal powers where they think they need...

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21 Aug

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...

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21 Aug

The post 9/11 debate on presidential power has, inevitably, been overshadowed by the actual performance of the current president. I say “inevitably” but the confusion between the president and the presidency has greatly limited the value of the academic discussion, which has been unfortunate. Consider, as an abstract proposition, the claim, which could be made at any time in American...

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21 Aug

In a comment to an earlier post by Eric, Marty Lederman has very helpfully raised the issue of how history is relevant to our discussions. I think it is relevant in three different ways: as originalist evidence, as evidence of what is desirable institutional behavior, and as evidence of what is politically possible. After some brief thoughts on...

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21 Aug

[Bobby Chesney is an Associate Professor at Wake Forest University School of Law, and the Chair of the AALS Section on National Security Law. He is the author of the forthcoming article Disaggregating Deference: The Judicial Power and Executive Branch Treaty Interpretations (Iowa Law Review 2007)] As Adrian noted yesterday in his post “First-Order and Second-Order Judgments,” he and Eric...

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21 Aug

As an interesting side note to the debate on counterrorism techniques, the American Psychological Association (APA) rejected a proposal on Sunday that would have prohibited psychologists from assisting interrogations at Guantanamo Bay and other military detention centers:Instead, the group approved a resolution that reaffirmed the association's opposition to torture and restricted members from taking part in interrogations that involved...

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21 Aug

Let me say a few general words about one of Lou’s points, as endorsed and restated by Marty in his comment: “First, the Framers had seen up close what can happen when too much "emergency" power is concentrated in the executive (short answer: it wasn't pretty), and therefore established substantial checks (mostly structural, but, esp. in the Bill of Rights...

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20 Aug

Vermeule and I agree one one point: "A crucial issue in this conversation is that of presidential motivation." There, however, I think the agreement ends. Vermeule's third sentence is an adequate starting point: "Yes, the executive’s capacities may be impressive, but its motivations are suspect (the suggestion often runs)." True as the second half of the argument...

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