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In Terror in the Balance , Posner and Vermeule take on civil libertarians of both the left and the right, arguing that the government should be given wide latitude to adjust policy and liberties in the times of emergency. They emphasize the virtues of unilateral executive actions and argue for making extensive powers available to the executive as warranted.

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At a time when the 'struggle against violent extremism' dominates the United States' agenda, this important and controversial work will spark discussion in the classroom and intellectual press alike. The judiciary should neither second-guess security policy nor interfere on constitutional grounds.

In order to protect citizens, government can and should use any legal instrument that is warranted under ordinary cost-benefit analysis. The value gained from the increase in security will exceed the losses from the decrease in liberty. Emergencies, Tradeoffs, and Deference 2.

The Panic Theory 3. The Democratic Failure Theory 4. Institutional Alternatives to Judicial Deference 6.

Coercive Interrogation 7. Speech, Due Process, and Political Trials 8. Eric A.

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If you are not convinced, you will be challenged to explain exactly why not. Terror in the Balance challenges this conventional wisdom from top to bottom. With its incisive and contrarian analyses of contemporary issues like coercive interrogation, military commissions, censorship laws, the PATRIOT Act, and ethnic profiling, Terror in the Balance is an enormously important contribution to the study of constitutional government during wartime.

This book will cause civil libertarians to pull their hair out; it will also force them to improve their arguments. Goldsmith, Harvard Law School. The authors provide a framework of analysis and discussion that eschews the far more common, and far less insightful, approaches so often offered by both supporters and critics of current government policies. A consequence is that the threshold for gathering information is constantly lowered.

In terms of time the government intervenes earlier than before.

Terror in the Balance

The laws no longer require a clear and present danger nor a sufficient suspicion. Some clues often suffice to start observations. In terms of scope the field of action broadens.

Many more persons are affected. It is no longer possible to keep the government at a distance by lawful behaviour.

In terms of subject matter the difference between relevant and irrelevant data disappears. From a rule of law-point it is extremely difficult to limit pre-emptive information-gathering by law.

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

If everything and everyone is of interest all borderlines become blurred. Governments usually justify their actions by asserting that law-abiding people do not have to fear any harm. But this is too easy an excuse. There are enough examples of people who by mistake or due to wrong interpretations of the data or because of denunciation were observed, arrested, detained or even tortured.

But apart from these cases of actual harm a person is no longer free in his or her behaviour when he or she has to expect that the government may have full information about his or her whereabouts, inclinations, activities, friends etc. Another threat to liberty is, of course, the increased use of detention and effective means of interrogation, even including torture.


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Here, too, the traditional thresholds for state action are lowered or absolute prohibitions like those against torture are no longer respected in the interest of enhanced security. Torture and other means such as shooting down captured airplanes that are being used as weapons in a terrorist attack seem particularly plausible in the case of a ticking bomb.


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