On Civil Rights Restrictions Research In The Age Of Terrorism-Between Richard Posner And Bruce Ackerman

In 2014, the ISIS was claim to establish a state, which turned anti-terrorism toward "war on terror". In the era of the "war on terror", it will be a hard case that how the optimal balance between national security and civil rights should be,which is the fundamental questions discussed in this atricle. The United States took anti-terrorism measures in the name of "war on terror", which provoked fiercely debate in academics, and,Richard Posner and Bruce Ackerman were the representative of each sides, whose theories were recorded in " Not a Suicide Pact" and "Before the Next Attack". Therefore, their theory about rights limitation will be set as sample in the article use to analysis what the right to do for government took measures to limit civil rights.Above all, this article will be divided into three chapters besides preface and epilogue:Chapter 1 mainly introduces the background provoking debate between Posner and Ackerman. Analysis method is adopted in this chapter to analysis of the practice of President Bush in the fight against terrorism to limit civil rights, and the decisions about Rumsfeld v. Padilla and Hammadi v. Rumsfeld.Chapter 2 is to analysis Posner and Ackerman's different attitude towards the Bush's anti-terrorism measures and the differences between them. Posner 's scheme defend the government's measures while Ackerman critics. Posner holdz that the constitutional interpretation is sufficient to deal with tterrorist threat, Ackermann advocats the need for framework legislation and strengthening checks and balances. For the recognition of a state of emergency, Posner resolves this problem, and Ackerman proposed a procedures to decide is there necessary to declare a state of emergency procedures. For rights derogation, Posner argues that it should not be admitted while Ackerman holds that the right to free from torture should be recognized as an non-derogable right; For the question how to limited determine the degree of rights limitation, Posner provides a cost benefit analysis method, while Ackerman creats a check and balance institutions. The differences of the above all is from the differences in jurisprudence of theirs, Posner advocates legal pragmatism, while Ackerman is dualistic democracy.Chapter 3 mainly argues that the human rights should be a absolute law in the fight against terrorism, uses the method of analysis and comparative method to compare Posner and Ackerman's right limitation theories with the international human rights law, concludes that both theories break the intentional human rights law,in the application premise and obligations to protect non-derogable rights.By asking why do both of the two theories break human rights law, he second-ordered balancing model could be constructed.