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Executive Action

The balancing of liberty and security in wartime.

Feb 1, 2010, Vol. 15, No. 19 • By JAY WEISER
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Executive Action

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.

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