Bruce Ackerman, David Cole, and the amusingly-named Mark Tushnet are highfalutin constitutional law scholars whose free time is spent counting balogna slices dusted with gold and knitting gun socks.
What follows are the key points from Ackerman's "The Emergency Constitution," Cole's rebuttal "The Priority of Morality," and Tushnet's "Emergencies and the Idea of Constitutionalism." These articles deal expressly with the concept of government power during times of emergency. Questions addressed in here are like "How much power can the government have during times of crisis? How long should those powers last? And how do we locate those powers in the law?"
I'm one of those people that can be talked into nearly anything -- you know, someone will be like "yeah see this and this and this" and I'll be like "oh yeah that makes sense." I was acutely aware of this as I typed up these notes; every other line I was like "hey that's a good point..." even if the paragraph is totally objectionable on final consideration.
The one-word synopsis of these is "BEWARE"
So here it is :
Ackerman main points :
-Terror attacks will occur in the future
-Therefore, new constitutional measures are required to check against politicians, who are wont to introduce repressive measures after attacks in order to promote security
-Civil libertarian arguments are tempting, but not pragmatic -- in the event of crisis, politicians will be applauded for brushing libertarian objections aside as 'quixotic' and instituting repressive measures. Therefore, the absolutist civil libertarian view is not workable
-Therefore, those who wish to defend liberty must work to codify short-term emergency measures that can't be extended in permanence - this is the way to prevent the 'panic-driven' cycle of increasing repression
-Existing Western legal frameworks of war and crime are inadequate for dealing with terrorism
-Re : war : This is because when the very existence of the State is threatened, the executive must be granted temporary and extraordinary powers; however, 9/11-type attacks don't literally pose this threat. The true threat is seated in the public panic caused by such attacks. Judges cannot be relied upon to make the correct snap decisions in the face of panics; they are no less immune to panic than the rest of us. The emergency constitution
-Contsructs of war law do not fit the so-called 'war on terror' -- war is in fact between sovereigns. Conceiving of the terror conflict as war leads to abuses such as the designation of suspected terrorists as 'enemy combatants.' Also, war ends, whereas the terror threat is without end; this leads to a situation where all people are potentially subject to detention without end. If the executive is also allowed to punish, this results in a de facto alternative criminal justice system, with all the questions that entails.
-Re: Crime : Al-Qaeda is a dangerous conspiracy just like the Mafia. Likewise, the accused participants in the very real Communist conspiracy, who were supported by a hostile sovereign and could well have precipitated a classic war, were never stripped of fundamental Constitutional due process.
-However, terrorists have political objectives, whereas criminal conspirators generally do not
-Also, the scale of the individual terrorist attack threat differs from the Commie threat in a couple of important ways : 1) The terror attack might wipe out a city, but not the entire civilization a la Soviet rocket attack; b) we have seen the devastation from a terror attack, whereas we never did see nuclear holocaust on our shores. The state will survive a terror attack, and must act to assure the public that it remains, is not demoralized, and is moving effectively to contain the threat
-Therefore, neither of these legal rubrics is adequate for dealing with the terror threat; a new emergency powers framework must be put in place so that the government can effectively reassure the populace after a tragedy
-The classic debate deals with emergencies that threaten the very existence of the state, which the terror attack does not. However, the reaction of the government to an attack is likely to do permanent harm to civil liberties
-Present 'when public safety may require it' language relies on judicial imagination for interpretation and also dealing with consequences; this is unacceptably ambiguous 'law fog'
-so why not allow a real emergency powers law take care of this?
-Without formal emergency powers, how do we prevent korematsu from rearing its head again?
-Suggestions to make emergency a case for extralegal action does prevent dangerous legal precedent from being established, but also poses the danger of the lawless conditions persisting
-Subjecting the declared state of emergency to vote every two months, requiring a larger majority for ratification each time -- the 'supermajoritarian escalator' -- is the way to ensure that states of emergency, and the abuses they necessarily entail, do not persist beyond their necesssity
-There should be a provision in emergency constitution to ensure that executive and majority party share information with minority legislators in advance of a vote
-S.A. already has a supermajoritarian escalator in their const, albeit only 2-step
-It would be necessary to explicitly differentiate between different types of emergencies (natural disasters, war, civil unrest) and prescribe for each -- Canada does this
-Innocents caught up in emergency dragnets would be entitled to 'just compensation' that takes into account the true cost to the individual of imprisonment, and this amount must be paid by the acting administration out of its own budget -- this is a good check against willy-nilly excess and also provides some measure of justice to those wronged
-Emergency powers would also be constrained by 'decency' -- e.g. , no terrible racism, personal animus, etc
-So : supermajoritarianism, compensation, decency are characteristics that make this plan not only actionable, but more just than other proposals
Cole main points :
-Stated goal of DoJ (Ashcroft) is to use any and every available law to collar 'suspected terrorists,' just as JFK would arrest a mobster for 'spitting on the sidewalk.'
-Preventive detention has taken place along undeniably racial grounds, with those of Middle Eastern descent being targeted on that basis alone
-Historical preventive detention cases (Palmer raids, Japanese internment)show poor targeting and rights abuses
-'suspicionless preventive detention' lacks 'legitimate purpose;' and emergency constitution would expand, rather than limit, it
-Ackerman's article is deficient in scope -- powers must be precisely enumerated
-If, for example, detention of innocents is wrong, why make it explicitly legal? The compensation scheme is muddled -- why dispose of the need for suspicion before detention in the first place?
-The idea that the costs of mass preventive detention are mitigated by the 'reassurance' of the public in time of 'panic' is flawed -- who is being reassured? Surely not those who share characteristics with the detainees
-There is no substitute for an 'appropriate normative balance between liberty and security -- call it the priority of morality' -- is it truly ever justified to incarcerate innocent people without suspicion? If detention without basis is legal, how are the courts to determine who is 'wrogly' imprisoned ex post?
-Ackerman underestimates courts and overestimates legislatures
-"Preventive detention without suspicion and without judicial review is not justified in the name of making the public feel better"
-Ackerman's dim view of judicial response in crisis is shortsighted; though Lincoln, Korematsu, et al are negative examples, in the macro view, the judiciary has shown itself able to check executive overreaching
-Good constitutional legal doctrine does provide positive prevention of some things and a good yardstick for the vetting of new proposals
-Political safeguards (legislative) make poor substitutes for judicial ones; history shows that legislatures are more likely to be caught up in the enthusiasm of the executive and 'spur it on' than to strongly check it in times of panic; the behavior of Congress in the Patriot Act era is evidence o this
-"The tendency of the collective to avoid hard choices is at its zenith in times of crisis"
-Legislatures and executives will take a bigger constitutional 'hit' if another terror attack occurs on their watch than if they violate civil liberties, particularly if those violations are concentrated on 'others' like foreign nationals and those of Arab descent
-Congress has never enforced War Powers Resolution, intended to check unilateral wars of the executive
-Congress has never convened on the National Emergencies Act to consider and vote on states of emergency
-If courts are a weak check on executive excess, the legislature is weaker still
-Detainees are unlikely to have political influence or public sympathy -- or else they would not be detained in the first place. This is another reason that their fate should not be trusted to the politically-responsive legislative branch - "the writ of habeus corpus is guaranteed for a reason"
-Ackerman's failure to distinguish not only between types of emergency powers, but the real reason the Palmer raids and other historical detentions were odious (not because the detentions were extended, but because they were based on no objective suspicion but on aspects of the victims' identity) shows the shallowness of his vision
-Problems of trade-offs between liberty and security can't be solved or 'sidestepped' by supermajoritarian escalators; this goes far beyond preventive detention
-Supermajoritarian escalator is not only insufficient to deal with many threats to civil liberties (such as FBI meddling in civil rights groups in the 60s), but irrelevant, simply because many responses to the threat of terrorism are not susceptible to time limits
-For example, the material support law requires a 'long-term systemic solution' to determine what constitutes material support (coloring books vs bombs) and whether the decisions of the government are reviewable -- again, supermajoritarian escalator / states of emergency have zero relevance here
-The detention of enemy combatants in an indefinite war likewise cannot be answered by a supermajoritarian escalator
- in short, different emergency powers should have different shelf lives
-on the other hand, the assumption that a state of emergency might not persist even though a 21% minority oppose it after a length of time fails to account for the fact that denial may be as likely a response as panic
-Al Qaeda as persisted for years despite the best efforts of the whole government; to suppose that no state of emergency could last more than a few months is unrealistic
-Palmer and Ashcroft roundups show that preventive detention can be effected without the declaration of a state of emergency; therefore there would be no incentive to declare one (and set its supermajoritarian works in motion) fo this purpose
-Because the 'compensation' angle rests not on the whether or not there was in fac treasonable suspicion, but rather ultimate innocence, a detainee who was subject to preventive incarceration but was later convicted of hiring an illegal worker would be denied compensation; likewise, someone for whom probable cause could have been shown but was ultimately innocent would be considered as 'lawfully' detained, and again denied compensation
-Ackerman's 'morality' specs (no personal animus or identity discrimination) are largely unenforceable
-Compensation unlikely to provide the correct amount of deterrence and would never truly compensate the innocent for loss of liberty
-The final normative reality is that a palliating 'reassurance' of the population can not be avalid reason for detaining individuals without cause and without judicial review
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Tushnet main points :
-There are three basic approaches to emergency powers as relates to costitutionalism :
1) The constitution's general principles should apply to emergency situations, with the 'rational application' of concepts such as race-based classification differing between constitutionality in peacetime and constitutionality in wartime
2) The constitution is 'bifurcated' into peacetime and wartime standards, with different applications unique to each
3) That war presents a reasonable opportunity for the wholesale suspension of legality, to avoid legal justifications and precedents that may be dangerous in peacetime
-^^The first view holds that constitutional law need not be displaced, only properly interpreted, to deal with crisis
-What is violation of free speech in peacetime may not be so in wartime
- -'Judges no less than public officials are subject to the pressures of events'
-The right categorical judgment may be swept aside in the heat of crisis
-Civil liberty violations may be difficult to consider as such in wartime, either because judges view the war interpretation as sufficient justification for the infraction (as they balance constitutional rights) or because they formulate categorical rules that permit the act in question as part of a chain of triggering mechanisms.
-These interpretations, if later shown to be based on incorrect assessment of emergency, may be negated as precedent in hindsight or, more dangerously, be seized upon all the more strongly when some larger crisis is perceived
-The disturbing part here is the treatment of the consequences of the decision as lawful
-This is especially of concern in situations like that of the terror threat, wherein the threat may be of indefinite duration
-Suspending legality for the duration of a finite war like WWII is one thing, doing so in a permanent condition is 'the end of the rule of law itself'
-The nature of the struggle against terror as a condition rather than a traditional war points to the idea that a more or less permanent, not emergency, balance between liberty and security should be struck
-^^The suspension-of-legality view (expounded by carl Schmitt) holds that such suspension is inevitable because the law cannot anticipate all future crises that will prompt government to spontaneously expand its powers, and to attempt to codify these in law undermines in fact the rule of law itself
-If we accept that executives will exercise extra-constitutional powers in the face of unanticipated varieties of emergency, we can deal with the consequences of extralegal actions ex post
-Forcing executives to publicly acknowledge extralegal action in real time is impractical -- such acknowledgement may invalidate whatever was being attempted
-"One cannot use law to determine when legality may be suspended"
-Governments operating under emergency powers = 'regimes of exception' ; these will arise; the question is 'how to locate them with respect to the constitution'
-The rule of law cannot be considered, in reality, to limit response to unknown emergencies; the public's recourse lies in the future rather than in short-term restrictions
-In contrast, legalized emergency powers provide executives with a 'fig leaf of legality to cover the expansive use of sheer power'
-As Jackson said in his Korematsu dissent, we can't confine military expedients within the constitution, and neither should the constitution be distorted to accommodate al military expedients
-It is better to have extraordinary power exercised in a way that is clear to all is extraordinary -- that is, in an extralegal understanding -- than to attempt to twist the law so as to allow for the exercise of extraordinary power
-The validity of extra-constutional acts is ratified or condemned not most crucially by the courts, but by the public acting 'out of doors'
-the cries of civil liberties alarmists are important for this function of check
-Crisis situations where the law requires X but individuals' morality requires Y are likely to bring about extralegal action
-Most importantly, admitted extralegal acts do not pose a threat to the ideal of the rule of law
-Bottom line : neither ordinary constitutional law nor 'emergency' constitutional law is well-suited to the address of true emergency (39,607)
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