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Putting reason back into emergency powers—A Commentary by Bruce Ackerman

The following op-ed originally appeared in the Boston Globe on Sunday, July 2, 2006.

Putting reason back into emergency powers
By Bruce Ackerman

As antiterrorism initiatives slowly leak to the public, a larger pattern emerges, revealing a deeper constitutional flaw. The problem is not so much what President Bush did immediately after Sept. 11, 2001, it is that our system has allowed these secret emergency measures to continue indefinitely, transforming our very understanding of normal government behavior.

It is easy to second-guess the president's decisions in the weeks after the terrorist attack. But without 20-20 hindsight, many of them look reasonable. On Sept. 12, the security services didn't know what had hit them, and there was an imperative need to assure that the Sears Tower would not be next. Within this context, it was reasonable to tap phone lines and search bank records for hints of a disastrous second strike that would generate another wave of panic.

But what was reasonable after a surprise attack has become a permanent state of affairs, without any effective review or control by Congress or the courts. The bureaucratic dynamics provoked by 9/11 are driving the government into a permanent state of emergency.

We have been here before. From the Great Depression through the Vietnam War, Congress had passed about 470 statutes allowing the president to declare one or another kind of "emergency," which presidents had regularly transformed into open-ended grants of extraordinary power -- culminating in the abuses of Watergate. In response, a select Senate committee headed by Frank Church spearheaded a fundamental effort to restore checks and balances. The National Emergencies Act of 1976 terminated all existing emergencies, and required that "each House of Congress shall meet" every six months to consider a vote on terminating any subsequent executive emergency decree. It also stipulated that all emergency decrees must lapse after one year.

This large effort proved to be a total failure. Despite the mandatory force of the word "shall," Congress has never complied with the act's requirement of a six-month review, and the president simply reissues the same decree year after year, without an effective remedy against these transparent evasions of statutory intent. Worse yet, the sad story has generated a pervasive hopelessness about the very possibility of organizing a system of effective congressional oversight. Politicians can be counted on to denounce each abuse as it hits the headlines, but nobody is seriously interested in becoming this generation's Frank Church.

But this is the wrong lesson to draw from the grim experience of the last generation. For all its good intentions, the Church committee came up with a poor institutional design. Under present law, the president is perfectly happy when Congress fails to discharge its statutory functions of oversight and control, since congressional passivity leaves his emergency declarations intact. A single basic change would restore a functioning system. Instead of placing the burden on Congress to take affirmative action, a revised Emergency Act should require the president to return to Congress at frequent intervals and gain affirmative congressional support for his continuing use of emergency power. If he fails to receive the requisite support, his emergency powers would lapse, and the courts would be instructed to invalidate their further exercise. This would force the president to engage Congress in a serious way.

For example, presidents should be authorized to respond to a terrorist attack by declaring an emergency only for a week or two while Congress is considering the matter. Emergency powers should then expire unless a majority of both Houses vote to continue them -- but even this vote has a temporal limit and is valid for only two months. The president must then return to Congress for reauthorization, and this time, a supermajority of 60 percent should be required; after two months more, the majority should be set at 70 percent; and then 80 percent for every subsequent two-month extension. Except for the worst terrorist onslaughts, this "supermajoritarian escalator" would terminate the use of emergency powers within a relatively short period.

This reform would allow Congress, and the rest of us, to separate the question of emergency power from a more fundamental issue raised by the rise of modern terrorism. Does the new threat justify a large shift in our traditional balance between freedom and security?

This is a serious question upon which serious people differ. Only one thing is clear: It should not be resolved by a mindless bureaucratic dynamic that extends reasonable responses to moments of genuine crisis into a new definition of normality. The 21st century's definition of a free society is not a matter to be resolved by secret presidential decrees, but by sustained public debate.

Bruce Ackerman, a professor of law and political science at Yale University, is author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.