Book and Web Reviews

Abstract

Rarely do pundits focus on the law as a problem in America's response to terrorism. Indeed, both sides quickly claim that the law supports them, hence no change is necessary. The authors view this as too simplistic, and see legal interpretation as having real consequences on the War on Terror. They argue that the Courts should give deference to what the Executive Branch regards as the proper response to an emergency situation owing to its greater availability of information and resources to attack the problem, and the lack of information sources and skill in foreign policy that most judges possess. They argue against any stance other than deference and it is a tribute to their reasoning that they largely succeed in their efforts, with the exception of one convoluted chapter regarding coercive interrogation. How can one argue against an anti-terror policy based exclusively on the rule of law and constrained by due process? The authors do so by consulting the historical record and retrieving ideas from branches of social science. How the book justifies its views is perhaps more useful for readers than even the measures it advocates for the War on Terror. Going back to the Civil War, the authors repeatedly demonstrate that the Courts have tried to balance the security of the state against the rights of the accused. When the Taney Court tried to block Lincoln from rounding up southern sympathizers in Maryland, not only did Lincoln ignore the Court and suspend habeas corpus, but he later got the war-time Congress (free of southerners with Republicans in the majority) to legalize what he did. In short, when there is a palpable threat to the State that establishes the Courts, the Courts have tended to let the Executive Branch do what it says is necessary. The authors acknowledgehowever that this sliding scale alsomoves in the other directionwhen the palpable threat lessens, as in the cases that largely reversed the Smith Act after the Red Scare of the 1950s passed. Even duringwar time, defendants canmake a vigorous defense as in the Dilling case where Nazi sympathizers were prosecuted under the Smith Act during WWII and the defense “...objected to every act of the prosecutor and disputed every ruling of the judge...” (p. 239), and the case came to an end with the abrupt death of the exhausted judge and the dismissal of the case by the new judge. The first part of the book examines major theories of national security law and the chapters go by the titles of Panic Theory, Democratic Failure Theory, and Ratchet Theory, which by their names describe why the law reacts the way it does to national security threats. The last half of the book looks at applications of these theories to law such as Alternatives to Judicial Deference, Speech, Due Process and Political Trials, and Military Force, but the most interesting of these chapters is the one on Coercive Interrogation. However convincing the rest of the book is, the authors themselves seem to lack conviction in their chapter on “coercive interrogation.” While they detail what coercive interrogation is NOT, i.e. torture, they never attempt to detail what coercive interrogation IS. Instead, they try to treat coercive interrogation as a police tool that can be just as legitimate as the use of lethal force to protect a life, and can be constrained by the same standard of whether “...the officer “reasonably believes to be necessary...” “for him to use lethal force. (p. 198) After denying throughout the book that judges (and the authors themselves) possess superior insight to the Executive Branch in responding to a national security emergency, in this chapter they suddenly find confidence in their ability to assert the conditions that they find coercive interrogation permissible. They detail a variety of moral arguments against coercive interrogation, but these have a sense of being straw man arguments, and these arguments are not so much rebutted as dismissed. Their only turn to the historical record (usually, one of the best features of this book) is to detail the Israeli experience with coercive interrogation in fighting terrorism, and while the authors do quote analysis from human-rights campaigners who find the use of coercive interrogation to be ineffective, the authors dismiss this finding almost as an exception proving the rule. In any case, the Israeli Supreme Court has declared”...that GSS practices of coercive interrogation violated rights of human dignity....” (p. 196) The chapter ends weakly when the authors concede, “Our aim in this chapter has not been to praise coercive interrogation, which is a grave evil on any reasonable moral view.” (p.214) The book examines the interaction of law and terror in a theoretical manner, but other authors have done much the same thing by examining the impacts the law has had on America's readiness for 9/ 11. The 9/11 Commission is the most famous example, but other examples include Federal Circuit Court Judge Richard A. Posner's Preventing Surprise Attacks, which contains this notable quote from a government report released just months before 9/11: “We have, in fact, solved a terrorist problem in the last twenty-five years. We have solved it so successfully that we have forgotten about it; and that is a treat. The problemwas aircraft hijacking and bombing. We solved that problem... The system is not perfect but it is good enough...We have pretty much nailed this thing.” Posner correctly understands it was not a lack of a good legal theory that contributed to government Government Information Quarterly 26 (2009) 427–430