Terror in the Balance

Security, Liberty, and the Courts

by Eric A. Posner and Adrian Vermeule

Oxford, 328 pp., $35

The hysteria over the Bush administration’s use of executive power in the war on terror has faded—even the “War on Terror” slogan has faded—but the terrorist challenge and the two wars it spawned continue, with a financial catastrophe laid on top like a maraschino cherry. In this salient book, Eric Posner and Adrian Vermeule argue that in an emergency, the executive branch should have near-complete discretion, and that Congress and the courts should stand aside. Even though this may allow the executive to act opportunistically, they contend that because the other branches of government lack speed, flexibility, and expertise, the alternatives are worse. Posner and Vermeule demonstrate rapid legal changes in emergencies—Jefferson’s Louisiana Purchase, Wilson’s press censorship, FDR’s internment of Japanese Americans, and Bush’s terrorism detentions and wiretaps are of a piece.

This book is most relevant at its edges, where it explores the limits of executive power in a dangerous, mutating environment never anticipated by existing law. The authors overstate their primary case—even at the moment of maximum crisis, the executive is never as omnipotent as it seems. And they warn that an over-fastidious approach to executive power can create dangers in novel situations—something the Obama administration seems eager to demonstrate with its planned criminal trial of Khalid Sheikh Mohammed.

The authors’ tight reasoning picks apart the panic theory, democratic failure theory, and other arguments made by executive power opponents. This, and related excursions into political theory, constitutional law, and history back to 1798’s Alien and Sedition Acts, can be heavy going for nonspecialist readers; but the clear writing exposes the illogical premises in an overwrought debate.

Others have been seduced by theory, by the way: Posner’s sometime co-

author, former deputy attorney general John Yoo, spun some theories of near-limitless executive power that ultimately torpedoed his White House clients. Ironically, Yoo’s overreaching inspired an opposite overreach by the Spanish judge Baltasar Garzón, who has claimed universal jurisdiction to prosecute Yoo’s purported human rights violations.

The apparently boundless emergency executive power that Posner/Vermeule identify is actually a product of consensus. Presidents often reach across party lines early in crises, appointing cabinet members from the other party and downplaying partisan doctrine. This was the real reason for Lincoln’s “team of rivals”—not Doris Kearns Goodwin’s gag-inducing Kumbaya campfire sing-along. By appointing political heavyweights with Democratic roots, Lincoln credibly demonstrated his shared priority of preserving the Union rather than destroying slavery. Franklin Roosevelt replaced Dr. New Deal with Dr. Win-the-War and switched Republican allies, too, jettisoning isolationist progressive supporters of his domestic policies (such as Nebraska senator George Norris) in favor of conservative internationalists like Secretary of War Henry Stimson. The Obama administration is walking a similar tightrope, with its core Democratic constituency lukewarm on Afghanistan and terrorism, while Republicans support an assertive policy.

As Posner/Vermeule note, emergencies decay: Madison’s constitutional system won’t tolerate unconstrained power for long periods. In contrast, civil libertarians, imprisoned by their own theories, assert a national security ratchet: Civil liberties, once violated, are never restored, restrictions compound on each other, and oppression calcifies into doom. The authors show that this has all the historical verisimilitude of an erotic horror novel. Restrictions have never outlasted emergencies: After the peak danger, courts and Congress reassert power. The Supreme Court stopped Truman’s steel mill seizure (which took place after the Korean war had stabilized) and as the Cold War became normalized, struck down anti-Communist free speech restrictions. Within five years after 9/11, courts began to strike down administration legal practices relating to the detention of unlawful combatants.

Lincoln shared the authors’ scorn for the ratchet, refusing to believe that

the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas corpus, throughout the indefinite peaceful future. .  .  . any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.

If anything, Posner/Vermeule suggest, after emergencies are safely over, a libertarian ratchet generates pious, guilt-ridden, untenable grants of civil liberties. And unfortunately, Attorney General Eric Holder shares the left’s ratchet fantasy: The attempted closure of Guantánamo was his initial foray into unreality. Now the Mohammed trial implies full constitutional rights for terrorists operating abroad and attacking on American soil. The possibilities are boundless. Miranda warnings before battlefield interrogations? A Fourth Amendment squadron that obtains warrants before Kabul car bomb searches? Eighth Amendment bans on drone attacks unless death penalty procedural requirements are followed? Will the courts allow any criminal prosecution where there was waterboarding?

Because both the authors and ratchet aficionados focus on the peak of emergencies, they underplay how the political environment affects the duration of an emergency. In unity governments cooperation continues even when frustrated voters hit presidents’ parties with major midterm election losses (Lincoln 1862, FDR 1942, Truman 1946). In partisan governments, with little goodwill going into the emergency, executive power is immediately contested and decays more rapidly (John Adams’s Quasi-War against France, Jefferson’s Embargo, Madison’s War of 1812, Woodrow Wilson’s Versailles Treaty). Some presidents change midstream: In the early Cold War Harry Truman consulted Republicans and used George Marshall’s name rather than his own for the Marshall Plan; but his highly partisan 1948 campaign (even painting the mild-mannered Thomas E. Dewey as a front man for fascists) led to a loss of support on China, Korea, and internal security.

The decay rate also depends on whose ox is gored. Support lasts longer when the targets are foreigners or anti-capitalist radicals (World War I, World War II, Cold War) as opposed to mainstream voters. John Adams wrecked his presidency with the Alien and Sedition Acts; in contrast, Lincoln cultivated War Democrats by limiting his anti-Copperhead sanctions to expulsions or brief imprisonment. With the civil rights era, things changed. After 9/11 U.S. Muslims, as a minority with limited political power and a small radicalized component, offered a tempting target to justify the expansion of executive power; but President Bush denounced those who wanted to demonize them. (Unfortunately, the libertarian ratchet went so far toward political correctness that Major Nidal Malik Hasan, an open Islamist, was able to earn an Army promotion before shooting over 40 people, killing 13.)

The longer the emergency, the greater the need to normalize the executive’s innovations. But this is not, as Posner/Vermeule suggest, primarily about Congress and the courts reining in the executive. There is a Constitution with teeth in emergencies—just not a written one. The emergency Constitution, like Britain’s, is based on custom, with a bipartisan war cabinet exercising substantial powers. The president is expected to obtain consent to major actions in advance from congressional leaders and key committee heads of both parties. When this is impossible, Congress expects a thorough briefing, the right to informal ratification, and an agreed course for the future. (Backdoor contacts with the courts are not unknown, either.) FDR’s first Inaugural Address, delivered after the banking system had collapsed, was a blunt statement of this unwritten Constitution: If Congress failed to rapidly pass his legislative program or its own, he said:

It may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure. .  .  . [I]n the event that the national emergency is still critical .  .  . I shall ask the Congress for the one remaining instrument to meet the crisis—broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.

The disastrous National Industrial Relations Act, which authorized FDR to cartelize the economy, came close to an unlimited grant of executive power. But other Hundred Days legislation delegated more limited authority, and even at the peak of the crisis in 1933, with Republicans only a small congressional minority, the Republican senator Arthur Vandenberg was able to shove the FDIC down FDR’s throat, despite the president’s fears that deposit insurance would create moral hazard.

As the scope of the emergency and methods for dealing with it become clear, some emergency powers decay, but others get legislative authorization. After a partial economic recovery, the Supreme Court struck down the NRA in 1935, but FDR’s Second Hundred Days legislatively revived several cartelizing NRA policies: the Wagner Act for union organizing, the Hot Oil Act for oil prices, and the Robinson-Patman Act to protect small retailers from chain store competition. With our current financial crisis past the acute stage, Congress and the Obama administration are trying to codify risk-reduction regulations for too-big-to-fail institutions. The National Security Act normalized the permanent Cold War crisis by mandating confidential executive consultations on sensitive matters with congressional leaders, but not with the whole Congress. On waterboarding, this worked: The Bush administration scrupulously followed the NSA, briefing congressional leaders, who gave their blessing, despite (then-ranking Democratic House Intelligence Committee member) Nancy Pelosi’s recent attempts at revisionist history.

This messy process of consultation, informal consensus, and executive action bears no relationship to the minimalist Constitution-in-exile beloved of some conservative scholars; it’s the Constitution-locked-in-the-attic, the crazy aunt everybody knows is there but is too polite to talk about. During the 2008 financial meltdown Treasury Secretary Henry Paulson, Fed Chair Benjamin Bernanke, and then-New York Fed chief Timothy Geithner radically intervened in financial markets to the tune of hundreds of billions of dollars—and then, with almost no legal authority, effectively seized AIG. Neither Congress nor the courts emitted a peep at this Beltway Putinism. When, with world financial collapse imminent, Paulson asked for $700 billion in no-strings TARP money, Congress squawked, attached some conditions—and signed on the dotted line. Nancy Pelosi, by then House speaker, formally supported the legislation, but turned around and denounced the perfidious Republicans on the House floor.

This violated the unwritten Constitution, which demands that the deal receive its Brangelina moment, where the opposing parties bill and coo at each other, gaze adoringly at the baby drooling in the busted stroller as they sign the adoption papers, and swear that they love it for its beautiful soul.

The unwritten emergency Constitution runs on trust. The other branches refrain from exercising their legal powers only as long as Congress’s voice counts in policy decisions, and Congress and the courts trust what they are told. Posner, in his Law and Social Norms, has observed that a person’s compliance with social norms signals whether they are reliable to deal with—which also applies to the norms of the unwritten Constitution. When trust goes, the written Constitution’s checks and balances roar back, and the executive gets ensnared, to the national detriment. Although one line of conservative thought blames weak executive power for congressional overreach in the 1970s, the real cause was Lyndon Johnson and Richard Nixon’s destruction of executive credibility. In the real world, excessive claims for emergency executive power can undermine it.

Jay Weiser is associate professor of law at CUNY.

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