Torture, with Apologies

TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS. By Eric A. Posner and Adrian Vermeule. New York, NY: Oxford University Press, 2007. Pp. 328. $29.95. NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY. By Richard A. Posner. New York, NY: Oxford University Press, 2006. Pp. 208. $18.95. Torture has become a topic of pressing national concern.1 The specter of torture haunts both popular culture and policy debates over how best to provide for national security under threat of potential terrorist attacks.2 In the eyes of many, the practice of torture stands as an exemplar of official abuse. Legal and moral prohibitions against torture focus attention on institutional commitments to fundamental human dignity and liberty. In the eyes of others, engaging in torture, and its descriptively milder forms of cruel, inhuman, and degrading treatment, would be justified under conditions of national necessity. In the choice between adhering to principle in the face of a potential loss of many thousands of innocent lives or resorting to torture, the tough-minded pragmatist claims that torture is the lesser evil.3 In the hands of those who prize consequences over principles, "ticking-bomb" hypotheticals-imagining officials confronting a suspect they know can reveal the location of a large bomb about to detonate in a crowded city-are designed to wrench from even the most ardent opponent of torture a reluctant admission that the practice would be justified under such exceptional circumstances.4 Moreover, among those who prize principle over consequences, under extreme, ticking-bomb scenarios, many would nonetheless defend the actions of a public official who would be willing to act outside the law to do whatever is necessary, including torturing suspects, to protect national security.5 A choice therefore seems to be unavoidable once the topic of torture is introduced: adhere to a principle prohibiting the practice of torture in the face of potentially dire risks or admit that circumstances and consequences matter to one's assessment of the legitimacy of torture. Two recent contributions to the growing literature on the purported clash between civil liberties and national security, Eric Posner and Adrian Vermeule's Terror in the Balance and Richard Posner's Not a Suicide Pact,6 eschew the practice of principle, articulating instead consequentialist apologies on behalf of official actions ranging from the suppression of dissent to the practice of torture.7 In their hands, constitutionally protected civil liberties become luxuries to be upheld only when conditions are thought normal but are to be substantially ignored when security threats are perceived as high. Both projects maintain the proposition that "[a] national emergency, such as a war, creates a disequilibrium in the existing system of constitutional rights,"8 requiring that the balance between civil liberties and national security be recalibrated in a way that favors security over liberty. Because, on their view, civil liberties impede effective security policy, "[t]here is a straightforward tradeoff between liberty and security."9 Indeed, Posner and Vermeule claim that "[t]here is no reason to think that the constitutional rights and powers appropriate for an emergency are the same as those that prevail during times of normalcy,"10 whereas there is ample reason to think that increased national-security benefits justify relaxing constitutional norms. Given the background practice of balancing rights against governmental needs, a second issue arises regarding which institution is best situated to make judgments about the optimal balance of security and liberty. Both projects adopt the view that judges should defer to executive decisions and "that judicial review of governmental action, in the name of the Constitution, should be relaxed or suspended during an emergency."11 According to Richard Posner, "That is the pragmatic response, and pragmatism is a dominant feature not only of American culture at large but also of the American judicial culture. …