Online Symposium: Opening Remarks
Our thanks to Opinio Juris for organizing this symposium. The market has become crowded with post-9/11 books and articles discussing the role of courts in the war on terror. Most of this work goes after the Bush administration for violating civil liberties; after Congress, for giving Bush what he wanted; and after the courts, for (with a few exceptions) standing out of the way. The deferential attitude of the courts and the legislature was predictable, and we predicted it in our earlier work on which the book was based; but, in this, we were hardly alone. The pattern of deference to the executive during emergencies is a clear one in American history, and many others had noticed it. What makes our book unusual is that we defend this pattern (what we call the “deference thesis”). Our defense rests on an extremely simple institutional analysis that has two pieces. First, rights and liberties are not absolute; they are traded off against other things people care about, such as security, a tradeoff that is largely conducted in everyday legislative, judicial, and executive action (the “tradeoff thesis”). Second, during emergencies the relative institutional competence of the executive places it in a better position to respond to threats, and so Congress and the courts ought to defer to the executive more than in normal times. The bulk of the book is devoted to criticizing the stock methods for rejecting the deference thesis, including the panic theory (only judges can prevent the executive from panicking, or from exploiting public panic for nefarious ends), the ratchet theory (judges should reject short-term constraints on civil liberties, even if justified by a threat, because of their long-term ill effects), and the democratic failure theory (emergency-related measures are especially likely to be undemocratic). We argue that these theories, which are often rhetorically effective, and are endlessly repeated both in academia and the media, do not survive scrutiny.
In this opening post, we want to briefly address the role of the idea of “emergency” in our work, and the literature on post-9/11 legal theory. A common criticism of our view goes like this. “Even if we might agree with you that the other branches should defer to the president during an emergency, we are not willing to accept the possibility that the emergency will never end. And who determines when the emergency ends? If the president, what prevents him from maintaining the state of emergency indefinitely?” We think that much of the literature does trade on an ambiguity in the meaning of emergency, namely, are we in a state of emergency as long as al Qaida or a similar hostile organization remains in existence (in other words, forever), or are we in a state of emergency only in the immediate aftermath of a disastrous attack such as the 9/11 attack itself, or some future detonation of a nuclear bomb in Manhattan or Washington, D.C. (meaning not as of now, mid-August 2007). The former seems unacceptable, and the latter case suggests that we should have long returned to normalcy, and yet Congress keeps giving the president more powers – even the new Democratic Congress, which recently expanded the executive’s surveillance authority, at least for the time being.
The dichotomy is a false one, as can be illustrated with reference to another approach, that of Bruce Ackerman, in his article, The Emergency Constitution. Ackerman proposes that the president be given the unilateral power to declare an emergency; once he makes that declaration, he has enhanced executive powers, including, apparently, the power to detain without charges. Ackerman might be seen to embrace the second view, but in fact that is not the case at all. By giving the president the power to declare an emergency, he greatly expands the president’s powers, and his emergency statute or constitutional amendment would be implemented now, and left on the books, indefinitely, as far as we can tell. So Ackerman simply proposes to enhance the executive’s power; that is all. He does not want to enhance the executive’s power as much as we do, and he is a lot more formalistic about it, requiring an elaborate system of rules and procedures. But in the essentials, our views are similar.
So what we need to see is that 9/11 does not, or not only, justify giving the president temporary emergency powers. What it has done is effect a permanent change in the Constitution, a permanent (at least until conditions change dramatically yet again) enhancement of executive power at the expense of Congress and the judiciary. The reason for this constitutional change is very simple: the public is more vulnerable to a devastating terrorist attack today than it has been in the past, and the executive is in the best position to protect the public. The change is due to changes in technology and global conditions. In the past, terrorists could not reach the United States as easily as they can today, and they did not have the technological means to kill as many people as they can today. And when the United States was not a global player, foreigners had little incentive to commit terrorist acts on American territory—even at times when international terrorism was very common.
The answer to the question above, then, is that the “emergency” (in the broad sense) never ends, though perhaps (we’re not sure) the 9/11 emergency itself has ended; the Supreme Court’s Hamdan opinion can be read in that light. This means that the entire armory of war-on-terror techniques—spying, detaining, coercive interrogating, procedurally limited trying of suspects—will be used indefinitely. Certainly, we are comfortable making this prediction. We do not think a President Clinton or Obama with Democratic majorities in both houses will cut back on the FISA amendments, the MCA, the Patriot Act, or any of the war-on-terror practices of the Bush administration. The question, then, is not how do we know whether to trust the president when he says the emergency continues, but how do we know whether to trust the president when he says that he is using his enhanced powers against terrorists (or people who can reasonably be suspected of terrorist activities) and not against ordinary people. This question is not really new, however. As long as the presidency exists, people have wondered how we can trust the president to use his powers (for example, his power to command troops) in an appropriate manner. This is just a version of the “who guards the guardians” question, and the answer seems to be just a complicated mixture of electoral control, limited public surveillance of government activities, political competition, and so forth.
The costs of a powerful executive have been endlessly described, and there is no reason to repeat them here. It is enough to recognize that these costs are real. But no one has come up with a serious alternative to an institutionally dominant executive, and, in practical political terms, the issue was settled more than one hundred years ago. Given our executive-dominated system, the only question is whether, on the margin, the executive’s power should be enhanced or reduced when new challenges to national security arise. Unless one can make a plausible case that the presidency was too strong or just strong enough before 9/11 (and we have not seen such a case), the answer is clear.