"States of Emergency"--A Commentary by Prof. Bruce Ackerman
(This essay was originally published in the February 7, 2002, issue of the London Review of Books.)
States of Emergency: Don't Panic
By Bruce Ackerman, Sterling Professor of Law and Political Science
Like it or not, terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it - not a plane next time, but perhaps an atomic bomb in a suitcase or a biotoxin in the water supply. The attack of 11 September is the prototype of similar events that will litter the 21st century. We should be looking on it in a prognostic spirit: what can we learn that will permit us to respond more intelligently the next time around?
If American reaction is any guide, we urgently require new constitutional concepts to deal with the protection of civil liberties. Otherwise, a downward cycle threatens. After each successful attack, politicians will come up with repressive laws and promise greater security - only to find that a different terrorist band manages to strike a few years later. This disaster will, in turn, create a demand for even more repressive laws, and on and on. Even if the next half-century sees only four or five attacks on the scale of 11 September, this destructive cycle will prove devastating to civil liberties by 2050.
It is tempting to respond to this grim prospect with an absolutist defence of traditional freedom: no matter how large the event, no matter how great the ensuing panic, we must insist on the strict protection of all rights all the time. I respect this view but do not share it. No democratic government can maintain popular support without acting effectively to calm panic and trying to prevent future terrorist strikes. If pedantic respect for civil liberties requires government paralysis, no serious politician will hesitate before sacrificing rights to the war against terrorism. He will only gain popular applause by brushing civil libertarian objections aside as quixotic.
To avoid a repeated cycle of repression, defenders of freedom must consider a more hard-headed doctrine, one that allows short-term emergency measures, but draws the line against permanent restrictions. Above all else, we must prevent politicians from exploiting momentary panic to impose long-lasting limitations on liberty. Designing a constitutional regime for a limited state of emergency is a tricky business. Unless careful precautions are taken, emergency measures have a habit of continuing well beyond their necessity. And governments shouldn't be permitted to run wild even during the emergency - many extreme measures should remain off-limits. Nevertheless, the self-conscious design of an emergency regime may well be the best available defence against a panic-driven cycle of permanent destruction.
One thing only is clear. There is no chance of a carefully modulated response unless we take some critical distance from the reigning rhetoric of the moment. George Bush and Tony Blair have made the 'war against terrorism' into a powerful political weapon; but it is precisely this casual war-talk that lies at the root of the problem. The recent skirmish in Afghanistan can be called a 'war' if you like, but don't confuse it with the totalising conflicts of the 20th century. The fog sets in once one supposes that 11 September has inaugurated our generation's war against Hitler. Given that premise, it seems natural for the Bushes and Blairs to impose restrictions on freedom comparable to those tolerated during the Second World War.
But this distorts basic features of our present situation. Adolf Hitler did not merely rail against Western decadence in propaganda films in the manner of Osama bin Laden. He stood at the head of multimillion-man armies aiming for total conquest. Though terrorist bands are capable of fearsome sneak-attacks, they cannot follow up with sustained military victories. At the same time, the 'war against terrorism' may ultimately exact a more serious price in civil liberties. While restrictions imposed during the Second World War were drastic, they were also temporary. But the war against terrorism will be a war without end - as different dissident groups, domestic and foreign, episodically master new technologies to devastating effect.
We do not yet know the extent to which American institutions will successfully expose casual war-talk to sustained critique over the next few years. If all the extreme actions announced by the Bush Administration are upheld in the courts, the downward spiral will have begun in earnest. But it is by no means certain that the judges will turn out to be rubber-stamps. Congress's recent anti-terrorist legislation also sends mixed messages. Though it launches many bad initiatives, it also contains the beginnings of a recognition that a carefully controlled state of emergency may be the best hope for civil liberties in the 21st century.
The initial response to 11 September was commendably restrained. For all his talk of 'crusades' against the 'evil one', President Bush obtained a limited grant of authority from Congress 'to use all necessary and appropriate force against those nations, organisations, or persons he determines planned, authorised, committed, or aided the terrorist attacks that occurred on Sept. 11 2001.' Focused on a single event, and authorising only 'necessary and appropriate force', this Congressional resolution falls far short of the classic declaration of war. Without expressly declaring a limited state of emergency, it gestures in this direction - and may provide the Supreme Court with legal resources needed to control some of the Administration's ill-considered actions.
But not all of them. Despite its lack of legal foundation, the Administration's constant talk of a 'war on terrorism' has been an effective political weapon, sometimes wielded in contexts that will elude subsequent judicial control. The most disturbing involve Presidential news management. Outraged by the television coverage of Osama bin Laden's first tape, the Administration demanded that networks exercise self-censorship, claiming that unedited tapes might give secret messages to terrorists. This rationale is an insult to the collective intelligence - any self-respecting member of al-Qaida would tune to the uncut Arabic version of Osama's speeches on al-Jazeera, rather than trusting CNN's report. Nevertheless, all major networks signed on to the war effort with embarrassingly little resistance, the First Amendment taking second place to their fear of public excoriation by the President.
The Administration has also taken to the airwaves with repeated 'terrorist alerts' to the general public. These contain absolutely no useful information, failing to identify targets or specific regions under threat. Their only purpose is bureaucratic self-protection in case a second attack occurs. When combined with media self-censorship, these free-floating alerts could readily generate a cascade of mass hysteria.
Fortunately, this isn't happening. Al-Qaida's failure to launch a second strike, together with the rapid victory in Afghanistan, is calming things down. The anthrax threat hasn't taken enough lives to push the public over the precipice into panic. Perhaps we will have a chance to review the governmental response to 11 September during a period of relative calm, and take steps to limit the damage the next time around.
Begin with Attorney General Ashcroft's security dragnet, which has swept up at least 1182 suspects. The sweep seems to have had a modest pay-off. The only person charged with direct involvement in the terrorist attack - Zacarias Moussaoui - was arrested before 11 September, and very few detainees have been held as material witnesses. Nevertheless, I do not fault Ashcroft's initial decision. The intelligence services had utterly failed to anticipate 11 September, and a sweep might have disrupted a second attack, as well as providing much-needed information.
Ashcroft's subsequent conduct is another matter. More than four months after 11 September, the Administration has not even publicly identified all the suspects caught up in its sweep. Secret detentions are the hallmark of tyranny; they violate the very foundations of constitutional due process. Ashcroft has also claimed authority to bug conversations between detainees and lawyers if there is a 'reasonable suspicion' that these talks 'may . . . facilitate acts of terrorism'. This represents an assault on age-old, and constitutionally protected, attorney-client privileges. The Justice Department counters by assuring us that special panels of its own lawyers will vet the tapes and eliminate all material covered by the attorney-client privilege. But the Department provides for no external review of its internal procedures. This is plainly insufficient. The adversarial system can't function fairly when the defendant is placed at the mercy of the prosecution in this unprecedented fashion.
There was worse to come. With the war winding down, the President asserted his power, as Commander-in-Chief, to short-circuit the normal courts and convene special military tribunals to try and punish alien terrorists. Final regulations haven't been issued, but the New York Times reports that the military retain the right to close the proceedings from public view whenever this is required by national security. Defendants will not be allowed to appeal their convictions to civilian judges. Capital punishment may be imposed by the vote of four members of a panel of five military officers.
Even if this system were reserved for enemy combatants captured on the field of battle, it would violate the country's international commitments. Under the Geneva Convention, a nation must use the same procedures to punish prisoners of war that it uses to punish its own soldiers. But American soldiers can appeal their convictions to an independent court of civilian judges, who have actually done a fine job maintaining the integrity of the system. By removing this basic check, the President takes a giant step backward to a time when 'military justice' was an oxymoron.
To avoid a blatant breach with the Convention, the Defence Department has been reduced to word-games - calling the captives it is shipping to Guantanamo Bay 'unlawful combatants' rather than 'prisoners of war'. Administration apologists have suggested that these 'combatants' fail to qualify for protection under a provision of the Convention that requires them to wear visible insignia, carry their arms openly, possess a command structure and conduct themselves according to the laws of war. But these requirements apply only to ancillary groups of irregular guerrillas who have not been integrated into a country's armed forces. By its express terms, the Geneva Convention unconditionally protects 'any member of regular armed forces who profess allegiance to a government or an authority' even if it is 'not recognised by the Detaining Power'. Certainly, the organised and armed bands of Taliban and al-Qaida 'profess[ed] allegiance' to Mullah Omar and the other authorities of the Islamic Emirate of Afghanistan. Why don't they qualify as that government's 'regular armed forces'? The Geneva Convention further provides that 'should any doubt arise' as to the status of any prisoner, 'such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.' The Administration's lawyers plainly have a job on their hands, and European allies should hold them up to the highest legal standards of argument.
The President is not merely proposing to impose his jerry-built system on soldiers captured on the battlefield, however. He asserts the power to punish any non-citizen - including tens of millions of legal immigrants - who violates his broad, but poorly defined, understanding of the 'laws of war'. The operational question is whether the Supreme Court will let him get away with this remarkable assertion of power. Military tribunals have had a mixed judicial reception in the past. During the Civil War, armed Confederate sympathisers were caught planning to disrupt the Democratic National Convention and to liberate eight thousand Confederate prisoners at nearby Camp Douglas. Lincoln convened a military tribunal to punish these men, but the Supreme Court stopped the process cold. The conspiracy occurred in Indiana, which was not a war zone. Since the civil courts were open, the Justices unanimously required the President to take his case to the ordinary courts. Their decision, in Ex parte Milligan, remains a powerful precedent.
It must be read along with another key case that came to the Court during World War Two. Six months after Pearl Harbor, U-boats landed eight German marines on American shores for sabotage missions. President Roosevelt ordered them to be tried by a secret military tribunal. Rushing into special session to hear oral argument, the Supreme Court deliberated for a single day before upholding the President in Ex parte Quirin, deferring an opinion till later. Only when Chief Justice Stone took up the task of writing did he appreciate how difficult it was to justify the Court's precipitate decision - likening his effort to the 'mortification of the flesh'. But there was no turning back. As Stone was labouring on his opinion, six of the eight Germans were executed - making it impossible for the Court to change its mind without condemning itself as well as the President.
Kill now, explain later: no believer in the rule of law can take pride in the Quirin story. The Justices' only excuse, if there is one, is that Congress had formally declared an all-out war against the Germans and that Roosevelt might not have obeyed a contrary order (or so he confided to associates). But it is one thing to extenuate the judicial collapse in Quirin; quite another to allow loose talk about the 'war on terrorism' to extend the baneful influence of the case further. As we have seen, Congress has not issued anything like a classic declaration of war in response to 11 September. It has only authorised the President to engage in the 'necessary and appropriate' use of force. In this context, Milligan and similar cases provide the sounder approach. The civilian courts are open for business and are perfectly capable of handling terrorism cases in a fair and responsible fashion. A Federal judge recently did a fine job in the trial of the mastermind of an earlier attack on the World Trade Center; and for all its militaristic talk, the Bush Administration has turned again to the Federal courts in seeking the conviction of Zacarias Moussaoui, the suspected '20th terrorist'. Given the demonstrated competence of the ordinary courts, the use of military tribunals is neither 'necessary' nor 'appropriate', and it is the job of the Supreme Court to make this clear.
Secret detentions; the destruction of attorney-client confidentiality; military tribunals: these steps are utterly disproportionate to the limited state of emergency created by 11 September. What is more, the President has taken these measures unilaterally, making them particularly vulnerable. For good democratic reasons, the Supreme Court is far more willing to strike down executive actions when they have not been formally endorsed by Congress.
But Congress has been active on other fronts, passing a new anti-terrorism statute within six weeks of the Twin Towers' fall. With the anthrax scare forcing many members out of their offices, and a terrorist second-strike looming as a serious possibility, there couldn't have been a worse time to think through legislation. And so I was rather surprised that an essay of mine in the Los Angeles Times struck a responsive chord in Washington DC. I suggested that any anti-terrorist law contain a 'sunset' provision requiring the entire statute to expire two years after its enactment. Within a short time, a libertarian coalition of right-wing Republicans and left-wing Democrats took up the cause and succeeded in attaching a two-year sunset to the House bill - a remarkable feat in a chamber controlled by Republican leaders exposed to lots of Bush pressure on the issue. Things were looking bright for the sunset as the bill moved to the Senate, where the Democrats were in control: surely they would be as protective of freedom as the Republican House?
Guess again. Anxious to avoid the charge that they were 'soft on terrorism', the Democratic leadership buckled before Administration pressure and dropped the provision from the Senate's version. Despite this defeat, the House coalition salvaged something when the revised bill returned for final approval. As enacted into law, the new statute retains a four-year sunset for many, but not all, of its provisions.
This partial sunset will in the fullness of time eliminate some of the law's worst features. Consider the special Federal court that has, since 1978, been charged with supervising intelligence operations against agents of foreign powers. Specially selected by the Chief Justice and sitting in total secrecy, these judges have compiled a remarkable record for authorising wire-taps and other forms of covert surveillance - granting ten thousand warrants, denying only one, over the last two decades. Though the Cold War has ended, these warrants have been increasing - from 546 in 1989 to 1005 in 2000.
The Supreme Court has never seriously assessed the constitutionality of this little-known tribunal. The new statute makes this imperative, since it has vastly increased the secret court's jurisdiction. Under the old law, the court could issue a warrant only if 'the purpose' was foreign intelligence. But it will now be possible to obtain these warrants for ordinary criminal investigations simply by alleging that foreign intelligence is an additional and 'significant purpose' of the surveillance. Given the court's track-record, the way is open for a massive increase in governmental intrusion. This is a terrible provision, but at least the sunset terminates its operation at the end of 2005.
Other bad ideas are permanent. Non-citizens engaging in 'terrorist activities' are now deportable, and 'terrorism' includes any crime that involves the use of 'a weapon or dangerous device (other than for mere personal monetary gain)'. Under this definition, a bar-room brawl is enough to destroy the life of a long-time immigrant with deep roots in his community. Such indiscriminate immigrant-bashing is, sad to say, typical of this legislation. These provisions, now an enduring part of American law, don't belong there in the first place.
The partial sunset will return the entire issue to Congress four years hence. The intelligence agencies will try to make their recent victories permanent, but civil libertarians should be prepared with a constructive response. Their counterproposal should authorise a carefully restricted set of emergency measures for a short period - say three or six months. Before the President can declare a limited state of emergency, he must obtain a majority in both Houses of Congress. And it should be even harder for him to extend the emergency for additional periods. Before this can happen, he should be required to obtain a Congressional supermajority, and the requisite percentage should increase with every requested extension - from two-thirds to three-quarters to four-fifths. Supermajority requirements provide a crucial safeguard against the normalisation of an emergency regime, given the temptations of the party in power to extend it indefinitely.
But creative legal thinking will not be enough to halt the cycle of repressive legislation. We need political imagination as well. Defenders of freedom can be found on both the right and the left. As my sunset story suggests, the challenge is to organise a left-right coalition against the friends of authority. Stranger things have happened in politics, and for less noble causes.
Europe is already influencing this political dynamic. The Spanish Government's refusal to hand over suspected terrorists has checked the Bush Administration's ardour for military tribunals. The French citizenship of the suspected '20th terrorist' helped persuade the Attorney General to try Zacarias Moussaoui in a civilian court - the costs of alienating the French Government were simply too great.
In the future, it will not be enough to defeat proposals that threaten permanent damage to civil liberties. Europeans should take the lead in developing more constructive solutions. It is far wiser to consider legislation creating a sensibly limited emergency regime before, not after, London or Paris becomes the target. The overriding aim should be to enact a statute that not only contains tight temporal limits but requires increasing legislative supermajorities for further extensions. A framework law emerging from any major European state would have worldwide influence. It would help us see the 'war on terrorism' for what it is: an extravagant metaphor blocking responsible thought about a serious problem.
Bruce Ackerman is Sterling Professor of Law and Political Science at Yale and the author of We the People. He is a member of the American Law Institute and the American Academy of Arts and Sciences.