A new book by Eric Posner and Adrian Vermeule (both of whom are charter members of the Jack Bauer Fan Club), called Terror in the Balance, offers a disturbing argument:  When confronted with a threat to national security, the government should have the power to simply suspend civil liberties.  The corollary is that lawyers, because we tend to get in the way of such things, should be muzzled, shut down and perhaps locked away if we become too much of a nuisance.

According to a post by Tommy Crocker at PrawfsBlawg, the point of the book is to

‘to restrain other lawyers and their philosophical allies from shackling the government’s response to emergencies with intrusive judicial review and amorphous worries about the second-order effects of sensible first-order policies. We hope merely to clear the ground for government to react to emergencies . . . . [I]n any case nothing in the lawyer’s expertise supplies the necessary tools for improving on the government’s choices.”

In non-lawprof lingo, shut us up since we’re do nothing to help.  Tommy doesn’t think too highly of this proposition:

Although we might expect that important topics, such as whether we want executive officials to have unfettered license to engage in torture, would require widespread public discussion, Posner and Vermeule rely on their notion of expertise instead. Moreover, although we might think that the biggest threats come either from outside (terrorists), or from institutional failures (tyranny), we learn from them that in fact the biggest threat comes from ourselves (or “civil libertarians” as “we” are called – that is, non-experts in national security policy who are concerned about constitutional principles).

See, I told you we were a nuisance.

Frankly, the notion of Terror in the Balance that arguing about rights at a time of real threat may well be offensive, but isn’t quite crazy.  There may well be times when immediate action is necessary to serve a greater good (hat tip to Justice Scalia, sorta).  The problem, however, is painfully clear to me, and has been proven over and over.

What constitutes a “real threat” and who’s to decide is a pragmatic problem that can’t be divorced from the theoretical.  Was invading Iraq necessary because of a real threat?  Congress agreed it was.  It was wrong.  Oops.  Can we trust our President to make the decision of when to suspend our rights?  I’m more than a little reluctant to do so.  Maybe the next president?  I’m not prepared to agree to that either, and even if the next one was cool, what about the one after that?

I get the idea of a real threat, Justice Scalia’s nuclear bomb over Los Angeles scenario, wherever he got that nutty idea from.  I don’t disagree with the idea that if the choice is a court order or the annihilation of half of mankind, I’m in favor of survival as much as the next guy.

I just don’t trust our government to do it.  Perhaps others place a higher value on their security than on their liberty.  Perhaps the sky is falling every time they tell us the sky is falling.  And no, I don’t see the civil libertarian as the primary threat to the continued existence of the United States or mankind, and I consider it pure fear-mongering to contend that we would all be safer and better off if we just got rid of all those civil-libertarian lawyers who keep gumming up the important work of government.