Before the Next Attack: Preserving Civil Liberties in An Age of Terrorism
Imagine waking up the morning after the next terrorist attack. You may feel a range of emotions: grief, anger, fear. And you will be relieved when you turn on the television and hear the president promise decisive action. Spurred on by self-righteous indignation and anxious self-defense, the government will spend billions over the next few months to prevent the repetition of the disaster—and a good thing too.
Day after day, a predictable range of reactions will play themselves out on television: the emphatic gestures of solidarity with the thousands who have lost their loved ones in the senseless blast, and the red alerts, the subway searches, the countless shows of bureaucratic determination to stop the ter-rorists in their tracks and prevent a second strike. These visible demonstra-tions of fraternity and preparedness are a crucial part of any human response. And yet they serve only as prologue to a deeper struggle with a collective unease, verging on panic, that the shattering blast brings in its wake.
In speaking of panic, I don’t wish to conjure images of frantic people pointlessly running about—although there will be some of that. I am gesturing toward a free-ﬂoating anxiety that insidiously increases our vig-ilance: we are hyperalert and hyperreactive. Even when we try to talk rationally about the attack and its aftermath, it won’t be hard to miss the undertone of anxiety. And of course there will be politicians who seize on the incipient rage to thrust themselves into the center of political life. How, then, to deal with the political panic that will predictably ensue?
We panicked the last time terrorists struck, and the Patriot Act was the result. For all the hype, the statute contains a grab bag of provisions— some bad, some good, some trivial. For diagnostic purposes, it’s more important to emphasize the panicky way Congress rushed the bill into law within thirty-three days of its proposal by then–Attorney General John Ashcroft.1 Passed in response “to a largely undeﬁned threat from a poorly understood source,” Patriot was used as a symbol to reassure the country that Washington was grimly determined to step up the ﬁght against terrorism.2 It was the form, not the substance, of the law that really mattered: Patriot was a symbolic shake of the collective ﬁst against the lurking terrorist menace.
And yet September 11 was merely a pinprick compared to the devasta-tion of a suitcase A-bomb or an anthrax epidemic= The next major attack may kill and maim one hundred thousand innocents, dwarﬁng the per-sonal anguish suffered by those who lost family and friends on 9/11. The resulting political panic threatens to leave behind a wave of repressive leg-islation far more drastic than anything imagined by the Patriot Act.
A downward cycle threatens: After each successful attack, politicians will come up with a new raft of repressive laws that ease our anxiety by promising greater security—only to ﬁnd that a different terrorist band manages to strike a few years later. This new disaster, in turn, will create a demand for more repression, and on and on. Even if the next half-century sees only three or four attacks on a scale that dwarf September 11, the pathological political cycle will prove devastating to civil liberties by 2050.3
The root of the problem is democracy itself. A Stalinist regime might respond to an attack by a travel blockade and a media blackout, leaving most of the country in the dark, going on as if everything were normal.
This can’t happen here. The shock waves will ripple through the pop-ulace with blinding speed. Competitive elections will tempt politicians to exploit the spreading panic to partisan advantage, challenging their rivals as insufﬁciently “tough on terrorism” and depicting civil libertarians as softies who are virtually laying out the welcome mat for our enemies. And so the cycle of repression moves relentlessly forward, with the bless-ing of our duly elected representatives.
Our traditional defense against such pathologies has been the courts. No matter how large the event, no matter how great the panic, they will protect our basic rights against our baser impulses.
Or so we tell ourselves—but it just isn’t true. The courts haven’t pro-tected us in the past, and they will do worse in the future. We need a strong and independent judiciary, of course, but we need something more. We require an “emergency constitution” that allows for effective short-term measures that will do everything plausible to stop a second strike—but which ﬁrmly draws the line against permanent restrictions. Above all else, we must prevent politicians from exploiting momentary panic to impose long-lasting limitations on liberty. Given the clear and present danger, it makes sense to tie ourselves to the mast as a precaution against deadly enticements. This is the promise of the “emergency con-stitution,” and this book explores how this promise might be realized in the real world.
Designing a limited state of emergency is a tricky business. Governments should not be permitted to run wild in the immediate aftermath of a terrorist attack—many extreme measures should remain off-limits. Even reasonable emergency measures can generate momen-tum that will be hard to stop when they are no longer necessary. It is no easy thing to design an emergency constitution that will control these pathological tendencies. Nevertheless, such a regime provides our best available defense against a panic-driven cycle and represents the most practical way to avoid the permanent destruction of our traditional free-doms.
Terrorism is a challenge facing all liberal democracies, and we have much to learn from the experience of other countries. Most of them haven’t had the protection of two great oceans, or the luxury of looking upon grave threats as rare events. By the luck of the geographic draw, they have been forced to live with extreme danger for centuries. As a con-sequence, their constitutions often contain elaborate political safeguards on the use of emergency powers, providing ideas for the work before us.
But there is no constitution on earth that provides a perfect model—or even a half-decent one. They were all designed with problems of an earlier age in mind—the threat of an invasion of one state by another, or a violent coup by domestic extremists. The threat posed by twenty-ﬁrst-century terrorism is different. In contrast to the Axis powers in World War II, Osama bin Laden does not have armies and navies that could physically oc-cupy the United States. In contrast to the Communists, Al Qaeda does not aim for the violent takeover of Western governments by revolution. The risks it poses are grave but historically unique. Terrorist attacks may kill a hundred thousand at a single blow, generating overwhelming grief and rip-pling panic that may ultimately turn our government into an oppressive police state. But Osama and his successors won’t ever occupy the country in the manner threatened by Hitler or Stalin. Territorial conquest is be-yond their power. If anybody destroys our legacy of freedom, it will be us.
In speaking of an emergency constitution, I don’t mean to be taken too literally. Almost nothing I propose will require formal constitutional amendment—the “emergency constitution” can be enacted by Congress as a framework statute governing responses to terrorist attack. But this won’t happen unless we conduct a constitutional conversation in the spirit of our eighteenth-century Founders.
As James Madison cautioned, “enlightened statesmen will not always be at the helm.”4 To check the descent into despotism, the Framers cre-ated a system of checks and balances, and I continue this worthy tradi-tion. My emergency constitution adapts our inherited system to meet the distinctive challenges of the twenty-ﬁrst century.
First and foremost, it imposes strict limits on unilateral presidential power. Presidents will not be authorized to declare an emergency on their own authority, except for a week or two while Congress is consid-ering the matter. Emergency powers should then lapse unless a majority of both houses votes to continue them—but even this vote has a tempo-ral limit and is valid for only two months. The president must then return to Congress for reauthorization, and this time, a supermajority of 60 per-cent is required; after two months more, the majority will be set at 70 percent; and then 80 percent for every subsequent two-month extension. Except for the worst terrorist onslaughts, this “supermajoritarian escala-tor” will terminate the use of emergency powers within a relatively short period. It will also force the president to think twice before requesting additional extensions unless he can make a truly compelling case to the broader public.
Deﬁning the scope of emergency power is a serious and sensitive busi-ness. But at its core, it involves the short-term detention of suspected ter-rorists to prevent a second strike. Nobody will be detained for more than forty-ﬁve days, and then only on reasonable suspicion. Once the forty-ﬁve days have lapsed, the government must satisfy the higher evidentiary standards that apply in ordinary criminal prosecutions. And even during the period of preventive detention, judges will be authorized to intervene to protect against torture and other abuses.
There is much to be said on these, and many other, matters. My par-ticular answers to concrete questions—Why two-month extensions, not three? Why forty-ﬁve days of preventive detention, not sixty?—are unim-portant, but it’s always best to provide a concrete target for others to shoot at. In any event, we can’t afford to lose ourselves in details. My aim is to provoke debate, not resolve it.
We are in a race against time. It takes time to confront the grim con-stitutional future that lies ahead; and more time to separate good pro-posals from bad ones; and more time to engage in a broad-based public discussion; and more time for farsighted politicians—if there are any—to enact a constitutional framework into law.
During all this time, terrorists will not be passive. Each major attack will breed further escalations of military force, police surveillance, and repressive legislation. The cycle of terror, fear, and repression may spin out of control long before a political consensus has formed behind a con-stitution for an emergency regime.
Then again, we may be lucky. Only one thing is clear: we won’t get anywhere if we don’t start a serious conversation. The stakes are high, because our current constitutional thinking and practice won’t be good enough to contain the recurring political panics that will be one of the great facts of twenty-ﬁrst-century life.
Words are the lifeblood of our constitutional life, and we are off to a bad start in describing our current dis-ease. The “war on terror” has paid enormous political dividends for President Bush, but it sends all the wrong signals for purposes of panic control. Calling the challenge a war tilts the constitutional scales in favor of unilateral executive action, and against our tradition of checks and balances.
There is something about the presidency that loves war talk. Almost two centuries ago Andrew Jackson was already declaring war on the Bank of the United States, indulging in legally problematic uses of executive power to withdraw federal deposits from The Enemy, headed by the evil one, Nicholas Biddle.5 And more recent presidents have declared war on poverty, crime, and drugs. Even at its most metaphorical, martial rhetoric allows the president to invoke his special mystique as commander-in-chief, calling the public to sacriﬁce greatly for the good of the nation. The clar-ion call to pseudowar is just the thing to provide rhetorical cover for uni-lateral actions of questionable legality.
The war on terrorism isn’t as obvious a rhetorical stretch as the war on poverty. Classical wars traditionally involve a battle against sovereign states, and it may seem a smallish matter to expand the paradigm to cover struggles with terrorist groups. But appearances are misleading.
Classic wars come to an end. Some decisive act of capitulation, armistice, or treaty signals the moment of termination, and in a way that all the world can see. This won’t happen with the war on terror. If and when bin Laden is caught, tried, and convicted, it still won’t be clear whether Al Qaeda has survived. At best, it will morph into other terror-ist groups. Al Qaeda already is collaborating with Hezbollah, and how will anybody determine where one group ends and the other begins?6
There are more than six billion people in the world—more than enough to supply terrorist networks with haters, even if the West does nothing to stir the pot. So if we choose to call this a war, it will be endless.
Here is where the emergency constitution provides a crucial alterna-tive. If left to their own devices, presidents will predictably exploit future terrorist attacks by calling on us to sacriﬁce more and more of our free-dom if we ever hope to win this “war.” But with an emergency constitu-tion in place, collective anxiety can be channeled into more constructive forms. If I am successful, a shocked nation will no longer turn on the tel-evision to see the president pound the table and rededicate himself to “winning the war on terror.” It will hear a different message:
My fellow Americans, as we grieve together at our terrible loss, you should know that your government will not be intimidated by this terrorist outrage. This is no time for business as usual; it is a time for urgent action. I am asking Congress to declare a tempo-rary state of emergency that will enable us to take aggressive mea-sures to prevent a second strike and seek a speedy return to a normal life, with all our rights and freedoms intact.
I am under no illusions. It will take a lot of work before we can construct an emergency constitution that will induce the presidency to forgo the pleasures of war talk, especially given President Bush’s initial success in per-suading Americans to buy into his rhetoric. Thanks to the media’s uncrit-ical repetition of the president’s mantra, everybody thinks it’s obvious that we are in the middle of a “war on terrorism.” Of course, many people dis-agree with the president’s conduct of the “war,” but no serious politician denies that we are ﬁghting one—this certainly wasn’t John Kerry’s message in the last election. And it is unreasonable to ask serious politicians to move beyond misplaced war talk without providing them with an alternative framework for expressing a serious commitment to national security.
This is the point of my book. In offering up a constitutional alternative, I’m not building from the ground up. I’m seeking to develop ideas and practices that are already in common use. The newscasts constantly report declarations of emergency by governors and presidents responding to nat-ural disasters—and though this is less familiar, American presidents regu-larly declare emergencies in response to foreign crises and terrorist threats. My aim is to develop these well-established practices into a credible bul-wark against the presidentialist war dynamic. This is the best way of assur-ing that the morning after the next attack we will wake up free.
The success of this enterprise will depend in part on the Supreme Court. If it decisively rejects extraordinary presidential actions in the name of the “war on terror,” it may help force the presidency to accept an emergency regime as its best available alternative. But the Court’s ﬁrst encounters with the subject leave a great deal open for the future, and the justices can’t do the entire job in any event. Unless and until a larger public debate begins on the shape of an emergency constitution, there is no hope that our politicians will take the idea seriously.
We may be lucky: perhaps there will be no repetition of September 11 on an even greater scale. Or when the next strike occurs, perhaps the sit-ting president will be a heroic defender of civil liberties and refuse to suc-cumb to the political dynamics of fear and repression. But things might turn out worse the next time round—perhaps the sitting president will combine the simplistic beliefs of George W. Bush, the rhetorical skills of Ronald Reagan, the political wiles of Lyndon Johnson, and the sheer ruthlessness of Richard Nixon into a single toxic bundle.
No constitutional design can guarantee against the very worst case, and no constitutional design is needed for the best of all possible worlds.
But there is plenty of room in the middle, and this is where human beings generally live out their lives. And this is where the emergency con-stitution can make a big difference—or so I hope to convince you.
I begin with a diagnosis of our present dis-ease: What is so dangerous about the notion that we are ﬁghting a “war” on terror? Why do we need a new emergency constitution that is carefully crafted to recognize the distinctive character of the terrorist threat? Why isn’t it good enough to use the tried and true system of our existing criminal law?
I then move from diagnosis to prescription: what principles should guide the construction of an emergency constitution?
I have already made my key point: we must control unilateral presi-dential power through the use of repeated Congressional reauthoriza-tions, and encourage the rapid termination of the emergency by use of the “supermajoritarian escalator.” But there are many other important issues that we need to explore.
Consider, for example, the fate of the principal victims of the state of emergency. Acting with extraordinary powers, the police and FBI may pick up thousands of terrorist suspects for preventive detention. Most of these people—probably the overwhelming majority—will turn out to be perfectly innocent. But under the emergency constitution, they must wait for forty-ﬁve days before they can gain their freedom through the standard mechanisms of the criminal law. Is this morally right?
I emphasize basic principles, suggesting how each part of the emer-gency constitution adds up to a larger whole. I then ask how the new emergency regime ﬁts into the fabric of existing American law. Though nobody pays much attention to it, we already have a framework statute, the National Emergencies Act of 1976. Despite its many weaknesses, the statute’s existence is important. It suggests that our challenge is to build on the efforts of the preceding generation, both by learning from its mis-takes and by redeeming its effort to build a reliable system of checks and balances to control the potential abuses of emergency power.
I also consider how my proposal ﬁts into our existing Constitution. Since it builds on the principle of checks and balances, there is no deep philosophical tension, and there is little doubt that the Supreme Court would uphold a thoughtful emergency powers statute if it ever cleared Congress. Nevertheless, the juxtaposition of the new and the old systems raises some fascinating questions about the capacity of our Constitution to endure.
I ﬁnally consider the worst possible case: a terrorist attack succeeds in decapitating the government, taking down the president and most of Congress and the Supreme Court in the blast. For obvious reasons, this isn’t something that our eighteenth-century Founders worried much about, and our ramshackle system could easily generate a severe govern-ment crisis at a moment when strong leadership was imperative. Yet the problems with our current system are mostly products of inertia and inat-tention—here is an area where we can come up with a series of relatively uncontroversial solutions if Congress gives the problem serious attention.
This is a downer of a book, a study in lesser evils, to borrow the title of Michael Ignatieff’s thoughtful essay.7 But all my grim scenarios shouldn’t entirely conceal rays of hope. Though our situation is grave, it is not as grim as the bad old days of the twentieth century, when Hitler and Stalin really did threaten us with physical occupation and political takeover. We managed to maintain our liberties during those perilous times, and with some institutional imagination, we can do it again.
Our great constitutional tradition of checks and balances provides the material we need to withstand the tragic attacks and predictable panics of the twenty-ﬁrst century. The challenge is to think, and act, in a way that will sustain this tradition into a third century.
No small task, surely. But one that isn’t obviously beyond us—or at least, this is the optimistic hope that informs the doomsday scenarios that follow.
CREDIT: Excerpted from Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism by Bruce Ackerman, published in April 2006 by Yale University Press. Copyright©2006 by Yale University. Reprinted by permission
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