Terror in the Balance: Security, Liberty, and the Courts.

• Author: Davies, Mark S.
• Position: Book review

TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS. By Eric A. Posner and Adrian Vermeule. Oxford and New York: Oxford University Press. 2007. Pp. 3, 307.

INTRODUCTION

In Terror in the Balance: Security, Liberty, and the Courts, University of Chicago law professors Eric A. Posner (1) and Adrian Vermeule (2) invite those of us worried about the American response to al-Qaeda to consider the proper role of judges. (3) Judges, of course, are not being dispatched to the hills of Pakistan nor are they securing our borders or buildings. But as the executive seeks to implement a range of new policies in the name of protecting us from al-Qaeda, the judicial treatment of these policies shapes the American response.

Posner and Vermeule suggest a kind of Hippocratic view of the judicial response to the executive's antiterrorist measures: First, do no harm. Judges, the authors argue, should let the executive do what it wants, both because the executive has the expertise to act and because there is no reason to believe judicial intervention will improve matters. Furthermore, Posner and Vermeule argue, judges in practice do stand aside and let the expert executive agencies do their jobs. The authors offer a blend of a normative view (that judges should not interfere) and a descriptive account (that judges will never meaningfully interfere).

In this Review, I suggest that the proper judicial role in the fight against al-Qaeda is the mundane one of improving executive performance through judicial review for arbitrary agency action. I don't mean to say that judges' only involvement in any terrorism case is to review for agency arbitrariness under the Administrative Procedure Act. The point is a more general one: regardless of the precise legal context, judges should and in fact often do seek only to assure that the executive has a reasonable explanation for its actions.

Part I of this Review describes the authors' arguments for complete judicial deference to the executive's antiterrorism measures. The authors assume that the government is as well motivated in implementing security measures as it is in implementing any other government function. Emphasizing comparative institutional competence, the authors claim that there is no reason to believe that judicial intervention will improve those measures. The authors illustrate these points with the World War II Korematsu case, the possibility of government-sanctioned torture, and the regime of detention of enemy combatants.

Part II argues for a "quotidian" form of judicial review of the executive's antiterrorism actions. The essential task in the fight against al-Qaeda is, first and foremost, effective executive action. Although some have proposed that a specialized court like the Foreign Intelligence Surveillance Court offers a sound model of judicial review in this context, the FISA court does not appear to have improved executive performance in the fight against our enemies. Accepting the authors' view that the motivations behind government antiterrorist measures are at least as well intentioned as the motivations behind any other agency action, judges still have a vital if ordinary role: Judges should do nothing more and nothing less than assure that the proposed agency action is reasonable.

1. (COMPLETELY) "DEFERENTIAL" JUDGES

   As Posner and Vermeule see it, the fundamental question raised by the threat from al-Qaeda is how to balance "liberty" and "security" (p. 27). Under their "tradeoff thesis," neither liberty nor security can be maximized independently from the other (p. 28). The problem for society "is one of optimization: to choose the point along the frontier that maximizes the joint benefits of security and liberty" (pp. 26-27). So, for example, the authors see tradeoffs between security and liberty in the decisions of whether to permit military commissions rather than courts to try noncitizen detainees charged as enemy combatants, and whether to prohibit the government from torturing suspected terrorists (p. 26). More technically, the authors describe a "security-liberty frontier," in which "any increase in security will require a decrease in liberty, and vice versa," a frontier that may change over time as the relative threats increase or diminish (p. 26).

   Posner and Vermeule argue that when thinking about the judicial role, we should assume that the executive is making policy decisions at the security-liberty frontier (p. 29). The authors assume that although the executive may not always choose the best policies, "it does choose accurately on average" (p. 29). Their "theory of emergency politics" likewise assumes "a rational and well motivated government" in the sense that its mistakes exhibit a random distribution (pp. 20, 27, 29). Thus, the "decision to infringe civil liberties for security purposes may be right or wrong, but it is no more likely right or wrong that the quotidian decision to construct a highway or reduce funding for education" (p. 30).

   Posner and Vermeule argue that when, as now, the country faces a national emergency, judges should step aside and let the president and his...