16 July 2007

A Dangerous And Intelligent Man

Adrian Vermmeule is a dangerous and intelligent man. He is a professor at Harvard Law School. His background is in administrative law, and his most politically notable work has been to argue for judicial deferrence not just to the executive branch generally in many circumstances, but in particular during states of emergency.

For example, in "Emergencies and Democratic Failure" (2006), he argues against the majority view of the judicial role in national emergencies, instead makes a case for greater judicial deference in emergencies arguing that:

Democratic failure is no more likely during emergencies than during normal times, and courts are in a worse position to correct democratic failures during emergencies than during normal times. The related arguments that during emergencies courts should protect aliens, and should be more skeptical of unilateral executive actions than of actions that are authorized by statutes, are also of doubtful validity.

He is a leading academic proponent of the "ticking time bomb" justification for coersive interrogation (read torture), in his article "Should Coercive Interrogation Be Legal?" (March 2005), the abstract of which argues understatedly:

If coercive interrogation is ever justified, and the benefits outweigh the risks of error and unintended consequences, it should be legal, albeit strictly regulated.

In one of his most recent works, Holmes on Emergencies (July 2007), he argues that the common law strategy for dealing with emergencies espoused by renowned jurist Oliver Wendell Holmes includes the notion that: "during emergencies there are no non-derogable rights - government can do anything if circumstances warrant[.]"

He previously taught at the University of Chicago Law School, probably the most conservative prestigious law school in the nation, and his work has frequently been supported by the conservative Olin Foundation. A partial bibliography of his scholarly works can be found at SSRN.

While there are many proponents of strong executive branch powers, and tolerance of authoritarian excess, few have the credentials or intelligence of Vermmeule. And, most of the others have a far larger profile among political elites, so he might evade the kind of allergic reaction that other less thoughtful or better known authoritarians might receive if he was, for example, nominated for a post on the United States Court of Appeals for the District of Columbia, which has an unusually strong role to play in administrative and public law.

Even absent a formal position on a powerful appellate court, solicitor general's office, or White House counsel position, his academic writings, which are very much in touch with the views of Dick Cheney, expressed through the Bush Administration, lend respectability and intellectual backbone to deplorable acts by government.

In short, he is someone worth keeping an eye upon.

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