“Quotidian” Judges vs. Al-Qaeda

In Terror in the Balance: Security, Liberty, and the Courts, University of Chicago law professors Eric A. Posner and Adrian Vermeule invite those of us worried about the American response to al-Qaeda to consider the proper role of judges. Judges, of course, are not being dispatched to the hills of Pakistan nor are they securing our borders or buildings. But as the executive seeks to implement a range of new policies in the name of protecting us from al-Qaeda, the judicial treatment of these policies shapes the American response. Posner and Vermeule suggest a kind of Hippocratic view of the judicial response to the executive’s antiterrorist measures: First, do no harm. Judges, the authors argue, should let the executive do what it wants, both because the executive has the expertise to act and because there is no reason to believe judicial intervention will improve matters. Furthermore, Posner and Vermeule argue, judges in practice do stand aside and let the expert executive agencies do their jobs. The authors offer a blend of a normative view (that judges should not interfere) and a descriptive account (that judges will never meaningfully interfere).