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 on a plane next time, but with poison gas in the subway or a biotoxin in the water supply. The attack of September 11 is the prototype for many events that will litter the twenty-first century. We should be looking at it in a diagnostic spirit: What can we learn that will permit us to respond more intelligently the next time around?
If the 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. (1) This disaster, in turn, will 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 September 11, this destructive cycle will prove devastating to civil liberties by 2050.
It is tempting to respond to this grim prospect with an absolutist defense 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 to prevent a second terrorist strike. If respect for civil liberties requires governmental paralysis, serious politicians will not hesitate before sacrificing rights to the war against terrorism. They 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 time of necessity. Governments should not 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 defense against a panic-driven cycle of permanent destruction.
This is a challenge confronting all liberal democracies, and we should not allow American particularities to divert attention from the general features of our problem in institutional design. Nevertheless, the distinctive character of the U.S. Constitution does create special problems, which I discuss separately when the need arises. My argument proceeds in two stages: The first is diagnostic, the second prescriptive. The exercise in diagnosis involves a critical survey of the conceptual resources provided by the Western legal tradition: Are our basic concepts adequate for dealing with the distinctive features of terrorist strikes? Part I suggests that we cannot deal with our problem adequately within the frameworks provided by the law of war or the law of crime. This negative conclusion clears the conceptual path for another way to confront the problem: the "state of emergency." The paradigm case for emergency powers has been an imminent threat to the very existence of the state, which necessitates empowering the Executive to take extraordinary measures.
Part II urges a critical reassessment of this traditional understanding: September 11 and its successors will not pose such a grave existential threat, but major acts of terrorism can induce short-term panic. It should be the purpose of a newly fashioned emergency regime to reassure the public that the situation is under control, and that the state is taking effective short-term actions to prevent a second strike. This reassurance rationale, as I call it, requires a sweeping revision of the emergency power provisions currently found in many of the world's constitutions.
But it requires something more: a reconsideration of the self-confident American belief that we are better off without an elaborate set of emergency provisions in our own Constitution, and that we should rely principally on judges to control our panic-driven responses to crises. Part III takes up this common law prejudice, and suggests why it will no longer serve us well under the conditions likely to prevail in the twenty-first century.
This is the point at which cultural diagnosis gives way to constitutional prescription. If I am right that the threat of terrorism cannot be cabined within the traditional categories of war and crime, that we cannot rely on judges to manage the panic-reactions likely to arise, and that existing constitutional provisions do not focus on the reassurance rationale, we have our work set out for us. What should a proper emergency constitution look like?
I offer a three-dimensional approach. The first and most fundamental dimension focuses on an innovative system of political checks and balances, with Parts IV and V describing constitutional mechanisms that enable effective short-run responses without allowing states of emergency to become permanent fixtures. The second dimension--Part VI--integrates economic incentives and compensation payments into the system. Finally, Part VII moves from political economy to the legal realm--proposing a framework that permits courts to intervene effectively to restrain predictable abuses without viewing judges as miraculous saviors of our threatened heritage of freedom.
Part VIII confronts some American political realities. Something like my design may prove attractive in countries that already possess elaborate emergency provisions. Given the formidable obstacle course presented by Article V of the U.S. Constitution, my proposal is a nonstarter as a formal amendment. Nevertheless much of the design could be introduced as a "framework statute" within the terms of the existing Constitution. Congress took a first step in this direction in the 1970s when it passed the National Emergencies Act. (2) But the experience under this Act demonstrates the need for radical revision. The next few years may well create a political opening for serious consideration of a new framework statute, especially if the Supreme Court acts wisely in some great cases coming up for decision in the next year or two.
We shall see.
BETWEEN WAR AND CRIME
Our legal tradition provides us with two fundamental concepts--war and crime--to deal with our present predicament. Neither fits.
The "war on terrorism" has paid enormous political dividends for President Bush, but that does not make it a compelling legal concept. War is traditionally defined as a state of belligerency between sovereigns. The wars with Afghanistan and Iraq were wars; the struggle against Osama bin Laden and al Qaeda is not. (3) The selective adaptation of doctrines dealing with war predictably leads to sweeping incursions on fundamental liberties. It is one thing for President Roosevelt to designate a captured American citizen serving in the German army as an "enemy combatant" and try him without standard scrutiny by the civilian courts; (4) it is quite another for President Bush to do the same thing for suspected members of al Qaeda. (5)
The difference is obvious and fundamental: Only a very small percentage of the human race is composed of recognized members of the German military, but anybody can be suspected of complicity with al Qaeda. This means that all of us are, in principle, subject to executive detention once we treat the "war on terrorism" as if it were the legal equivalent of the war against Germany.
War between sovereign states also comes to an end; some decisive act of capitulation, armistice, or treaty takes place for all the world to see. But this will not happen in the war against terrorism. Even if bin Laden is caught, tried, and convicted, it will not be clear whether al Qaeda has survived. Even if this network disintegrates, it will likely morph into other terrorist groups. Al Qaeda is already collaborating with Hezbollah, (6) for example, and how will anybody determine where one group ends and the other begins? 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. This means that we not only subject everybody to the risk of detention by the Commander in Chief, but we subject everybody to the risk of endless detention. (7)
If the President is allowed to punish, as well as to detain, the logic of war-talk leads to the creation of a full-blown alternative system of criminal justice for terrorism suspects. This system is already emerging in the military, and we are beginning to argue about the way it should be constructed: How little evidence suffices to justify how much detention? Can detainees ever get in touch with civilian lawyers? Can these lawyers ever scrutinize the evidence, or must it remain secret? (8)
These are important questions, but it is even more important to challenge the war-talk that makes the entire enterprise seem plausible. (9) The only legal language presently available for making this critique--the language of the criminal law--is not entirely persuasive. But it is powerful.
For the criminal law purist, the "war on terrorism" is merely a metaphor without decisive legal significance, more like the "war on drugs" or the "war on crime" than the war against Nazi Germany. Al Qaeda is a dangerous conspiracy, but so is the Mafia, whose activities lead to the deaths of...