Emergency Powers and Terrorism

• Author: Wayne McCormack
• Pages: 04

EMERGENCY POWERS AND TERRORISM

WAYNE MCCORMACK*

The moral strength, vitality and commitment proudly enunciated in the Constitution is best tested at a time when forceful, emotionally moving arguments to ignore or trivialize its provisions seek a subordination of time honored constitutional protections.1

If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.2

1. Introduction

   Does a national emergency grant unfettered power to the Executive, disrupt normal operation of tripartite government, or suspend civil liberties protections of the populace? In three cases decided in June 2004, the Supreme Court made a series of pronouncements on executive military power in time of national emergency,3 with implications potentially eclipsing those from the Civil War and World War II eras. The House of Lords, in December 2004, responded to similar arguments in a remarkably similar case involving executive detention of aliens

   suspected of terrorist links.4 Five years earlier, the Supreme Court of Israel dealt with an argument for necessity as a defense to otherwise illegal interrogation techniques.5

   All of these cases posit the difficulty of expecting restrained observance of individual liberty in times of crisis, particularly in time of war. There is nothing unusual or particularly threatening about heightened security and decreased mobility during time of war. But if war and civil liberties make strange bedfellows, what should be said about a "war" without a defined enemy or a defined end? The rhetorical flourish of "War on Terrorism"6 has its historical roots in some loose use of language beginning with the "War on Poverty" and followed by the "War on Drugs." Maybe the "War on Poverty" did not do much to civil rights (although some conservatives would differ strongly), but the "War on Drugs" has raised very significant concerns both for civil liberties and for the wisdom of the effort. 7 Now, enhanced powers of law enforcement, legislated in response to the "terrorism" threat, are being deployed in pursuit of drug dealers and other "ordinary" criminals,8 and the "wars" intersect.

   Much has happened in United States law since 11 September 2001 (9/11), and the turmoil has produced some uncomfortable postures for the U.S. legal system. The confusion to be expected in a time of major public security threats was exacerbated when the misnamed "war on terror" was followed by two real wars in Afghanistan and Iraq. The arenas of law enforcement against terrorism and fighting on foreign soil became blended in both the public debates and in some government policy. In fact, the two efforts became physically blended when suspected terrorists captured in places such as Bosnia were imprisoned in Guantanamo along with Taliban militia members captured in Afghanistan.9

   Federal judges frequently have apologized for having to enforce the constitution as they have struggled with questions involving the rights of executive detainees,10 judicial review over executive demands for information,11 and mens rea in criminal prosecutions.12 This is a puzzling and troubling posture for a judiciary grounded in the rule of law, and it reflects a genuine difficulty in responding to emergency situations through judicial proceedings.13

   As noted judges such as Learned Hand14 and Robert Jackson15 have pointed out, the judiciary is not the final bulwark against government repression. "We the People" ultimately must decide to what extent we are willing to sacrifice freedom for security.16 Each generation's emergency tends to become the fuel for the next generation's resistance to encroachments on civil liberties, perhaps because Americans have survived each emergency and realized that extreme encroachments may not have been necessary.17 As war is too important to be left to the generals,18 so also are civil liberties too important to be left to the courts.19 Most of the issues ultimately are not about the law so much as they are about the people, both those enforcing the law and those involved in the political process. "We the People" ultimately must decide to what extent we are willing to sacrifice freedom for security. Much of the discussion inevitably will involve political judgments. How well "We the People" respond to these challenges is up to "Us."

   Much of the public controversy about the Bush administration's domestic responses to terrorism has focused on the wiretap and recordseizing powers under the Patriot Act.20 The Patriot Act, however, was not really an emergency action and its existence is currently being debated in Congress.21

   In contrast to the public debate, most of the post-9/11 academic discussion references emergency powers as a single general topic, sometimes using preventive detention or torture as the paradigmatic example. Generalization, however, carries only so far. This article starts with consideration of some specific claims of emergency power: domestic use of the military, preventive detentions, investigations and government secrecy, and interrogation techniques. Paying attention to the specifics will help demonstrate that there is a strong role for both the legislature and the courts even in times of crisis. Next, the article canvasses the options available for a general answer to the question of emergency powers, considering answers of "Yes," "No," and "Maybe."

   Most advocates for the "No" position tend to argue that it is important for constitutional norms to remain fixed, even if officials will violate those norms without consequence during emergencies.22 The "Yes" advocates tend to become advocates for "Maybe" because they conclude that there must be some method for legitimizing what would otherwise be unlawful, such as by legislative23 or electoral24 ratification.

   The most attractive option, for reasons that will be spelled out at the conclusion of this article, is what might be called the "Prego" option―"It's in there"―that emergency powers are built into some constitutional provisions and carry their own limitations. It remains true, however, that the most powerful voices in times of social-political stress will be those of a vigilant citizenry.

2. Specific Claims of Emergency Power

   Emergencies can be classified as "natural," "technologic," or "complex."25 Natural emergencies include hurricanes, earthquakes, and similar happenings. Technologic emergencies include destruction or immobilization of facilities or infrastructure, whether intentional or not. Complex emergencies have been described as "situations in which the capacity to sustain livelihood and life is threatened primarily by political factors, and in particular, by high levels of violence."26 Sustained terrorist attacks thus fit within the rubric of a complex emergency.

   It would be a serious mistake to forget that there are centuries of experience in Anglo-American law in dealing with emergencies. Emergency power to deal with disasters of the natural or technologic variety is fully recognized in U.S. law and has been exercised on a number of occasions. In response to "complex emergencies," Congress has explicitly authorized military involvement in domestic affairs when civilian authorities are overwhelmed.27 Moreover, doctrines of necessity have developed to excuse governmental actions taken in time of complex emergencies such as wartime. The important point to remember,

   however, is that these doctrines all carry within them stated, or inferable, limitations on the scope of the emergency power.

   A. Domestic Use of Military Power

   A scenario of domestic use of military resources may help focus the issues. Imagine that someone has unleashed botulin toxin into the water supply of New York City. To make this a little more interesting, suppose that Federal Bureau of Investigation (FBI) agents believe this was not the work of a foreign group but a domestic militia out of the hills of West Virginia. There is no way of knowing what city the militia may strike next and no way that domestic police forces can patrol all the vulnerable locations of water supplies in the country. When the President calls out the military to patrol the water supplies of the nation, is there any prospect of judicial intervention? Who would be the plaintiff in a lawsuit?

   Carry the scenario to the next level. General Smith, who is commanding the U.S. forces involved, issues orders creating a 200 meter perimeter around every access point to municipal water supplies. Military police are under orders to immediately arrest and incarcerate any unauthorized person entering the perimeter. Individuals remain in custody until officials determine why they entered the unauthorized area. Space Cadet wanders into the perimeter while listening to his iPod and playing a video game on his hand-held personal data device. Ned Turner decides to intentionally challenge this excessive display of federal power and strides purposefully up to the fence and waits to be arrested. Military police take both into custody. The following discussion does not attempt to directly answer the questions raised in this scenario, but the reader may find it useful to think about how to deal with this situation at each stage of the discussion.

   1. Necessity in Takings Law

   The United States has a complete federal agency devoted to civil emergency response. The Federal Emergency Management Agency (FEMA) traces its history to the Depression and the New Deal in much

   the same fashion as the accretion of federal power in many areas.28 The current version of FEMA was created by executive order in 1979,29

   amalgamating the activities of over 100 federal agencies that were engaged in some form of "disaster relief,"30 and...