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In Case of Emergency

1.

It has been nearly five years since September 11, 2001, and thus far the United States has been spared another terrorist attack on home soil. That’s just about the point when cancer patients in remission are told they can begin to relax if their symptoms have not recurred. But with the threat of terrorist attacks, we may never be able to let down our guard. Even if we were to eliminate al-Qaeda altogether—and some counterterrorism experts suggest that we may never know when that day has come, because al-Qaeda is more a loose-knit ideological movement than a distinct and coherent organization—there are always likely to be groups that resent the United States, and are willing to use violence to express their resentment. The issue is not so much Islamic fundamentalism as technological progress. The development of weapons of mass destruction—a development we pioneered—has made it increasingly easier for small groups or even people acting alone to inflict devastating damage. As Yale Law School professor Bruce Ackerman observes in Before the Next Attack, the state has lost its monopoly on the deployment of destructive technologies.

In this respect, the threat of terrorist attacks may be something that we must learn to live with—as a cancer patient learns to live with the ever-present possibility of recurrence. This feature of terrorism, however, only makes it all the more important that we adopt means for addressing it that are consistent with our deepest principles. The threat of terrorist attack is not a short-term phenomenon requiring temporary sacrifices, with the promise of an eventual return to normalcy, but a long-term condition. It is, as Vice President Dick Cheney has put it, “the new normal.”

The fact that the terrorist threat is unlikely to abate anytime soon—or ever—makes a “war on terror” like no other war. While it is never possible, in the midst of a war, to say when it will end, this war may literally have no end. President Bush has said that the war “will not end until every terrorist group of global reach has been found, stopped, and defeated.” That day will never arrive.

Many critics have argued that for these reasons, we must resist the label of the “war on terror.” Once such rhetoric takes hold, those who care about civil liberties and civil rights will forever be on the defensive. The question is, what is the alternative?

Bruce Ackerman, one of the most creative legal minds of our generation, echoes the critics’ concern about war talk and, to his credit, proposes an alternative—the “Emergency Constitution.” Al-Qaeda’s terrorist attacks, he argues, should be viewed neither as acts of war, as the administration has treated them, nor as mere crimes, as some civil liberties advocates have argued, but as something in between—armed attacks causing a political “emergency.” Such attacks, he claims, do not pose an “existential threat” to the nation; there is no risk that al-Qaeda will assume governmental power. They do, however, challenge the nation’s “effective sovereignty,” by calling into question the government’s ability to protect its people.

As a result, he suggests, neither a war model nor a business-as-usual model is apt. Rather, we need to authorize temporary emergency authorities in order to reassure a panicked citizenry that the state will swiftly restore order and maintain control. Otherwise, he warns, the government will inevitably overreact, employing rhetoric about war to justify extraordinary measures that undermine civil liberties. And with each attack, the overreaction will go further. Ackerman boldly claims that all of the world’s constitutions, including our own, are defective in failing adequately to address such political emergencies, and proposes nothing less than a change in constitutional system.

Ackerman’s skepticism of war rhetoric is well founded. His proposals, moreover, have been taken seriously. Among the legal authorities who have praised his book are Philip Heymann, a former US deputy attorney general, now a professor of law at Harvard, and Eugene Fidell, the president of the National Institute of Military Justice, who credits him with having written “a politically astute—and courageous—plan for preserving our constitutional system.” Unfortunately, while Ackerman’s diagnosis of the problem is incisive, his proposal would do nothing to cure it. When stripped of its own rhetoric, what Ackerman presents as a solution to an asserted constitutional defect turns out to be little more than a flawed preventive detention law. Far from solving the problem of overzealous responses to terrorist threats, Ackerman’s proposal would likely exacerbate the problem, by freeing government officials to round up thousands of “terror suspects” without having to satisfy any court that there is any factual basis for the detentions. And his plan would do nothing to stop government officials from asserting extraordinary powers and undermining basic freedoms using other legal authorities.

Instead of the prompt judicial review that the Constitution generally requires when suspects are locked up, Ackerman would subject emergency preventive detention to an unusual legislative restraint. Borrowing from South Africa’s constitution, which requires a 60 percent majority to sustain emergency powers, Ackerman would require the legislature to renew the emergency—and therefore the emergency authority to detain—at two-month intervals by increasingly lopsided “supermajorities.” Initially, the legislature need only ratify the emergency by a simple majority, but after two months, continuation of the emergency would require a 60 percent majority; after four months a 70 percent majority would be necessary; and after six months 80 percent of the legislature would have to approve. This “supermajoritarian escalator,” as Ackerman calls it, would institutionalize a presumption against prolonged emergencies, for without an overwhelming consensus, emergencies would be short-lived.

As long as the state of emergency is in effect, the president would have the power to lock up suspects for forty-five days, or until the emergency is terminated, whichever comes sooner. Upon an individual’s arrest the government would have to make a “showing” in court of facts to justify its actions, but the court would have no power to assess the sufficiency of that showing. At no time during his period of incarceration would the suspect have any opportunity to challenge the evidentiary grounds for his detention. He would be able to seek judicial intervention only to bar the use of torture. At the end of the forty-five-day period, the government would have to release the suspect or charge him criminally. Those who are not charged or who are acquitted in a subsequent criminal trial would be compensated at a rate of $500 a day (or $22,500 for a prison term of forty-five days). Punitive damages would also be available, but only if prosecutors could be shown to have lied in seeking to justify a detention.

The idea behind the proposal is to give the president short-term emergency powers that will reassure the public and help forestall a second terrorist attack, while sharply limiting the period of the emergency in order to preserve civil liberties for the long term.

But Ackerman’s proposal is fundamentally flawed for three reasons. First, there is no reason to believe that preventive detention without judicial review is either necessary or sufficient to protect us from a second attack. Whatever limited protection preventive detention might promise could be achieved without the drastic step of eliminating judicial review. Second, the existence of such a provision would not forestall other abuses of civil liberties in the name of national security. Third, the proposal rests on a preference for legislative checks over judicial checks on questions of emergency powers and individual liberties, and that preference is unsupported by the factual record we have. While far from perfect, the courts have been more reliable than Congress when it comes to protecting the rights of the most vulnerable. Ackerman is right that we need credible alternatives to war talk, but his own alternative fails the test of plausibility.

2.

The historical record should caution us against encouraging widespread preventive detention in the name of national security. On three occasions, US authorities have resorted to mass preventive detention in periods of crisis. After eight bombs exploded in eight American cities within the same hour in 1919, the Justice Department launched what became known as the “Palmer Raids,” even though they were planned by the young J. Edgar Hoover. Government officials rounded up thousands of foreign nationals on charges of technical immigration violations or association with Communist organizations, interrogated them without lawyers, and deported hundreds. None was found to have had any involvement in the bombings.

In World War II, President Franklin Delano Roosevelt authorized the internment of 110,000 persons of Japanese descent, more than 70,000 of whom were American citizens. The stated purpose was to forestall espionage or sabotage by Japanese and Japanese-Americans living on the West Coast. Not one of the internees was found to have been a spy or to have planned any sabotage.

After the attacks of September 11, Attorney General John Ashcroft launched the nation’s third mass preventive detention campaign. In seven weeks, the government had arrested over a thousand so-called “terror suspects.” During the first two years after September 11, the government imprisoned more than five thousand foreign nationals in preventive detention as part of its “war on terror.” Virtually all were Arab and Muslim. Many were arrested and tried in secret. Most were arrested on technical immigration charges, and many were held long after their immigration cases were fully resolved. Nearly five years later, not one of the five thousand stands convicted of a terrorist offense.

Ackerman responds that the mere fact that preventive detention did not work in the past does not mean that it won’t work in the future. It is “perfectly possible” that a dragnet might actually net a potential terrorist, he writes. But that is a terribly thin hope upon which to rest such an awesome power. Moreover, what all of the previous roundups had in common was that they did not require proof that the individuals detained posed any threat. Ackerman’s proposal would do the same thing.

When Ackerman first proposed his idea in a Yale Law Journal article entitled “The Emergency Constitution,” he called for preventive detention without any requirement that the government demonstrate any basis for suspicion. I wrote a reply, in which I criticized that aspect of his proposal.1 In response, Ackerman has now modified his proposal to provide that detention should be based on “reasonable suspicion” that a person may be engaged in an illegal act. That standard comes from a Supreme Court case permitting police to stop people briefly in public places in order to dispel or confirm their “reasonable suspicion” that a crime may be afoot.2 The Court concluded that because such brief stops are an important method for investigating potential crime, and impose only a minimal temporary intrusion, they may be carried out when the police have “reasonable suspicion” rather than “probable cause” of a crime. What is “reasonable suspicion”? The Court has said that it’s “more than a hunch”; but it has also held that if a person runs away from the police in a high-crime area, that behavior is sufficient to meet the standard of “reasonable suspicion.”

  1. 1

    See Bruce Ackerman, “The Emergency Constitution,” Yale Law Journal, Vol. 113 (2004), p. 1029; David Cole, “The Priority of Morality: The Emergency Constitution’s Blind Spot,” Yale Law Journal, Vol. 113 (2004), p. 1753.

  2. 2

    Terry v. Ohio, 392 US (1968).

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