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The Rule of Law in the Fight against Terrorism

Authors


  • We thank Robert Axelrod, Jowei Chen, Josh Cohen, Livio Di Lonardo, Richard Hall, Xiaochen Fan, James Fearon, John Ferejohn, James Kuklinski, Matias Iaryczower, Arthur Lupia, Ken Shepsle, David Siegel, Beth Simmons, Jim Snyder, Matthew Stephenson, Nicholas Valentino, the editor, four anonymous reviewers, and seminar participants at Harvard University, University of Illinois, and University of Michigan for helpful comments and suggestions. All errors are ours.

Abstract

What is the role of legal limits on executive power, if any, when citizens demand more security from terrorism, and allowing executive officials legal flexibility of action appears necessary to achieve it? We develop a game-theoretic model to show that when the executive faces increased electoral incentives to provide security and has legal flexibility to choose any policy it finds optimal, security from terrorism can actually decrease. In contrast, when the executive faces increased electoral incentives to provide security and there is an explicit legal limit on executive counterterrorism activities, security from terrorism increases. We also show that the executive achieves the objective of terrorism prevention more effectively when there are some limitations on its counterterrorism powers. The article provides a security rationale for legal limits on executive power and has implications for understanding how to design the institutional structure of liberal governments when the social objective is terrorism prevention.

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