No Reason to Believe: Radical Skepticism, Emergency Power, and Constitutional Constraint

Terror in the Balance: Security, Liberty, and the Courts. Eric A. Posner and Adrian Vermeule. Oxford, 2007. Pp 3, 319.

Most observers of American history look back with regret and shame on our nation’s record of respecting civil liberties in times of crisis. The list of abuses is all too familiar: incarcerating peace activists for mere speech during World War I; rounding up thousands of foreign nationals on political affiliation charges in the Palmer Raids of 1919–1920; interning approximately 110,000 Japanese-Americans and Japanese immigrants during World War II; targeting millions for loyalty inquisitions, civil sanctions, blacklisting, and criminal punishment based on suspected political affiliations in the Cold War; and rounding up thousands of Arab and Muslim foreign nationals who had no connection to terrorism in the wake of the terrorist attacks of September 11, 2001, while authorizing torture and cruel treatment as an intelligence gathering tool. In each case, the government cast a dramatically overbroad net, sweeping up many thousands of people who posed no danger whatsoever and thus infringed on basic liberties without any evident security benefits. At the same time, the victims of government overreaching were not evenly or randomly distributed among the general populace but were concentrated in disempowered minority groups—groups unlikely to have the political clout to object effectively to their mistreatment. And in each instance, government officials seemed to be driven to compromise some of our most fundamental principles by grossly exaggerated fears. In retrospect, most commentators recognize that these were terrible mistakes.2 The challenge is generally thought to be how not to repeat them. In Terror in the Balance: Security, Liberty, and the Courts, Eric Posner and Adrian Vermeule offer a strikingly contrarian and radically skeptical perspective on these historical events.