Coyote Blog

Well, this, from Opinio Juris, certainly got my blood moving this morning:

The first part of Posner and Vermeule's book offers a forceful
theoretical defense of executive authority during times of emergency.
The book offers a thoughtful and well-reasoned perspective on the
cost-benefit analysis at play when government seeks the optimal balance
between the competing goods of security and liberty. Posner and
Vermeule argue that there is a Pareto security-liberty frontier at
which no win-win improvements are possible. That is, at this frontier
any increase in security will require a decrease in liberty, and
vice-versa. From my perspective, the existence of this security-liberty
frontier appears unassailable.

Given this frontier, Posner and Vermeule then offer their central
argument of institutional competence. They argue that there are few or
no domains in which it is true both that government choices about
emergency policies are not accurate (on average) and
that judicial review can make things better. They further argue that
civil libertarians who subscribe to vigorous judicial review in times
of emergency fail to identify a large and important set of cases in
which government blunders or acts opportunistically during emergencies and in which judges can improve matters

I haven't read the book, and am only just getting through the symposium they are holding.  My first, primal reaction is YUK!  Here are a couple of random thoughts:

• I don't know if the last statement in the second paragraph is true -- I suspect it is not, or at least is subject to "improve matters" being interpreted differently by each individual.  However, it strikes me that even if the statement is true, checks and reviews by other branches of government still circumscribe executive excesses by their threat.  And the act and/or the threat of review leads to open political debate that can redirect executive actions.  Even GWB, who has pushed the theory of executive powers to new levels, can arguably be said to have modified his management of the Iraq war in response to Congressional scrutiny, even without explicit legislation being passed. 
• The incentive system in government is for the government and its employees to grab new powers over the populace.  Anything that slows down that process, even in a "Crisis" is a good thing
• If they want to argue that the Congress is useless as a check because in times of crisis they just become the president's bitch, I can't argue with you.  Just look at how the Democratic majority actions on Patriot Act rollbacks (none) or FISA enforcement (they actually retroactively gave Bush the power he wanted).  But this does not mean we should give up hoping they will try.
• Government officials love it when they can act with enhanced power and decreased accountability.  If we institutionalize an imperial presidency in times of "crisis" and then give the President the power to declare a "crisis", then you can bet we will always be in a crisis.   Even if checks and balances don't tend to improve civil liberties decision-making in times of crisis, they at least help us get out of the crisis and declare normality again.  Otherwise we would never go back.

The real problem is that a government full of lifetime government employees is never, ever going to make the right choice on the security-freedom curve.  Really, by security, we mean government intrusion, so you can think of this as the government power vs. individual power curve.  And lifetime government employees are always going to choose for more power for themselves.  The problem is not who in government should fix our point on this curve, the problem is that anyone in the government is allowed to fix this point. 

That was what the Constitution was supposed to be for -- an act of the people fixing this point for the government.  The founding fathers were well aware of republics that had processes for slipping into dictatorship in times of war.  Rome was a good example, and eventually demonstrated what happened in this system -- the crisis never went away and you got a dictator all the time with no republic.  The founders explicitly did not write such a capacity for the president into the Constitution.  And it should stay that way.

Hopefully I will have more coherent thoughts after having read more of their work.

Update:  This comes to mind, for example

A recent interview with
Mike McConnell, the director of national intelligence, suggests that
the administration also feels duty-bound to withhold information when
it might be useful to critics who oppose President Bush's
anti-terrorism policies, since those policies are necessary to protect
national security. But the very same information can"”indeed, should"”be
released at a more opportune time, when it will help the president
pursue his policies....

And then further, to the issue of eavesdropping international calls:

It's
pretty clear McConnell's real concern is that debating this issue
endangers national security because it threatens to prevent the
president from doing whatever he thinks is necessary to fight
terrorism. Hence Steven Aftergood, director of the Project on
Government Secrecy at the Federation of American Scientists, is not at
all exaggerating when he observes, "He's basically saying that
democracy is going to kill Americans." And not just democracy, but
constitutional government of any kind, since anything that interferes
with the president's unilateral decisions with respect to national
security (which is whatever he says it is) is going to kill Americans
too.