« For a Good Time Call 555-0123: Liability-Free Phone Numbers for the Entertainment Media | Main | "The Moral Foundations of Law" »

Tuesday, March 04, 2008

Ristroph on Terror in the Balance

My friend and occasional sparring partner in crim law theory, Alice Ristroph (Utah to Seton Hall via Harvard Ethics), has unleashed the dogs of war on "Professors Strangelove," Chicago's Eric Posner and Harvard's Adrian Vermeule. Up on SSRN now, you can find her bare-knuckled critique of Posner and Vermeule's book, Terror in the Balance: Security, Liberty and the Courts. The review essay appears in the Winter 2008 issue of Green Bag. Here's an excerpt:

And after comedy, there is farce. With no discernible comedic
intent, a number of lawyers and law professors have reprised roles
from Kubrick’s famous film [Dr. Strangelove]. Insisting that the war on terror is too
important to be left to anyone other than the President, scorning
opponents of torture as sissies afraid to muss their hair, and rapidly
collecting promotions and personal citations, these lawyers are
teaching America to stop worrying and love the waterboard – and
the wiretap, and the ethnic profiling, and the indefinite detention,
and all the other strategies of our new war that might be funny if
they weren’t so deadly serious.

In the academy, the distinguished professors who advocate torture,
executive absolutism, and other departures from the rule of
law have been met with respectful, and inconsequential, disagreement.
Indeed, if law professors such as John Yoo, Eric Posner, and
Adrian Vermeule are today’s Ripper, Turgidson, and Kong, others
in the legal academy are more akin to President Merkin Muffley.
The balding, bespectacled Muffley is the only character in Dr.
Strangelove who fully appreciates the moral implications of nuclear
war, but his hesitancy and unfailing politeness render him a mostly
ineffective counterweight to his war-mongering colleagues. He is
the voice of reason, but that voice is timid and faltering. Today,
academic counterparts to Merkin Muffley take exception to the bellicose
program of the Professors Strangelove. But “debates” over
national security in the American legal academy are choreographed
events among gentlemen, usually featuring excellent sportsmanship
all around. Neither side wins or loses; everyone shakes hands at the
end; and everyone keeps his job, his viewpoint, and his dignity.

It is unlikely that the apologists for torture and executive absolutism
will persuade many others in the legal academy to join their
cause. But that is not the point. The Professors Strangelove play to
an audience beyond the academy. They provide a degree of intellectual
legitimacy to an ideology and a political program that has been
developed, for the most part, outside the ivory tower.
Eric Posner and Adrian Vermeule have recently published Terror
in the Balance, a new defense of executive power. That is, the book
is new. Its central argument is the familiar claim that in times of
emergency, the executive must curtail liberty to ensure security,
and the courts should not interfere.

Posted by Administrators on March 4, 2008 at 10:23 AM in Article Spotlight, Books, Constitutional thoughts, Law and Politics | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef00e5509623af8833

Listed below are links to weblogs that reference Ristroph on Terror in the Balance:

Comments

Alice,

Thanks for your response. I'm not entirely sure if I misunderstood you or not, but I am glad that you favor engaging with the substance of Posner & Vermeule's argument. Some people view these issues as purely political, and they want to delegititimize debate by shaming dissenting minorities into not making arguments on the other side. I tend to side with Learned Hand that "the Spirit of Liberty is the spirit that is not too sure it is right," and that we can only advance our knowledge by treating ideas with respect before disagreeing with them. I'm glad you agree.

Posted by: Orin Kerr | Mar 4, 2008 5:42:40 PM

On thinking: I'm all for it. The reference to "looking past the rhetoric of seriousness" is quite clearly not an exhortation to ignore P&V's arguments, but to look past the rhetoric and evaluate them on substance.

On tone: I admit, it's not gentle. But I think it's a fair response to this particular book, especially given the tone with which P&V take on civil libertarians.

On Mandrake: I stand corrected, Bruce. My apologies to the deviated prevert.

Posted by: Alice Ristroph | Mar 4, 2008 4:57:38 PM

I gathered, perhaps incorrectly, that the purpose of these comments was to discourage readers from giving Posner & Vermuele's ideas a serious and respectful hearing. Given that, I was surprised by your assertion that Posner & Vermuele's ideas were themselves trying to discourage thought.

I take a different reading of Alice's thesis. The essay itself is a critical review of Posner & Vermeule's book, and while it often takes a humorous tone (certainly at times sarcastic but no more harsh than the acerbic tone P&V often take), this doesn't seem to discourage dialogue. If anything, it provides an object lesson in how to engage in that kind of dialogue.

And to the extent that the review suggests that Posner & Vermeule's position discourages democratic debate, this seems to be more about the effect of their argument on public dialogue about the war on terror rather than academic dialogue about the merits of their project.

To the extent that the parts of Alice's essay quoted by Orin suggest that behind Posner & Vermeule's ostensibly academic position lie strong political preferences, I've always wondered about this. I encountered them and some of their work a bit when I worked at the U of C law school, and my first impression was that their work was really just a law application of the Chicago realist school (Mearscheimer et al.). This might explain why they're not torture exceptionalists--torture is just one of many tools that states-as-rational-utility-maximizers use to advance their interests. But it doesn't explain their faith in the executive as the best agent to determine whether to use particular tools to advance U.S. interests. Unless one is convinced by the simplest version of a revealed-preferences argument (the President's election means he is the best agent to choose U.S. policy), then even a strong belief in advancing U.S. interests by any means necessary doesn't mean that there is a single best actor to determine those interests.

Posted by: Dave | Mar 4, 2008 2:50:48 PM

Oh, and I should add -- on the merits, I mostly agree with the review. I found Posner and Vermeule's argument highly unpersuasive, and I'm much more on Alice's side (although in some areas my views are still uncertain). My point was about tone, not substance: I find that free and open debate works best when we given an open and respectful hearing to both sides.

Posted by: Orin Kerr | Mar 4, 2008 1:26:37 PM

Alice,

Perhaps I misunderstood your argument, and if so I apologize immediately (and with my tail tucked between my legs) for my snippy remark. But I saw part of the goal of the essay as being to push readers not to take these ideas seriously and to stop debating them respectfully on the merits.

At the outset of the essay, you criticize the polite and "sportsmanlike" debate of Posner & Vermuele's ideas in which "everyone keeps his job, his viewpoint, and his dignity." (p245). This polite debate is inappropriate because Posner and Vermeuele are "apologists for torture and executive absolutism", who can be equated to John Yoo (p245), Instead, the essay suggests, we should "look past the rhetoric of seriousness" of their arguments (p251), and see Posner & Vermeuele as "play[ing] to an audience beyond the academy," "provid[ing] a degree of intellectual legitimacy to an ideology and a political program." (p245) You equate "those still thinking" with "critics of the current administration and its policies of torture, detention, secrecy, and surveillance," p.256, suggesting, as I understand it, that those who agree with the Administration's views are not actually thinking.

I gathered, perhaps incorrectly, that the purpose of these comments was to discourage readers from giving Posner & Vermuele's ideas a serious and respectful hearing. Given that, I was surprised by your assertion that Posner & Vermuele's ideas were themselves trying to discourage thought. Again, though, maybe I misunderstood the essay, and if so I apologize.

Posted by: Orin Kerr | Mar 4, 2008 1:17:15 PM

The balding, bespectacled Muffley is the only character in Dr.
Strangelove who fully appreciates the moral implications of nuclear
war

There's also Group Captain Lionel Mandrake. But he's, in Keenan Wynn's words, a foreign "deviated prevert."

Posted by: Bruce Boyden | Mar 4, 2008 12:23:12 PM

Yeah, I'd like to see Orin elaborate on that, too. Having just read the review, it seems to me that the one thing that cannot be said about it is that it discourages thought. Indeed, I would have said that the review's entire point is to encourage more of us to think more about the hard questions that arise in times of national security.

The thought thus generated might or might not be useful. The very idea of encouraging more "non-experts" to engage directly with these issues might or might not be a good thought. And for that matter, the claim that Posner and Vermeule effectively discourage and impede independent thought might or might not be well founded. But none of that affects whether the review discourages thought, does it?

Posted by: Trevor Morrison | Mar 4, 2008 12:21:08 PM

Orin, I don't expect you to like the review, but could you elaborate? In what way does my review discourage thought?

Posted by: Alice Ristroph | Mar 4, 2008 12:07:49 PM

From the review, describing Posner & Vermeule's book: And this project is a travesty insofar as it comes
from professors – from persons ostensibly professionally committed to encouraging and facilitating thought.

Pot, meet kettle.

Posted by: Orin Kerr | Mar 4, 2008 11:41:55 AM

The comments to this entry are closed.