What happens to our freedoms when the next terrorist strike succeeds?
They may be swept away by a presidential declaration of martial law. For the first time in our history, the Pentagon has devised war plans for responding to terrorist attacks in the United States. According to The Washington Post:
[T]he dispatch of ground troops would most likely be justified on the basis of the president's authority under Article 2 of the Constitution to serve as commander in chief and protect the nation… "That would be the place we would start from" in making the legal case, said Col. John Gereski, a senior [military] lawyer. But Gereski also said he knew of no court test of this legal argument.
Years will pass while the legal machinery grinds on, and in the meantime, the president will be pressing forward. His guiding star will be the judicial precedent recently established in the case of Jose Padilla.*
A few months after September 11th, Padilla was seized by the Bush administration as an "enemy combatant" upon his arrival at O'Hare Airport. He had arrived in civilian clothes and without any dangerous weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. When the court of appeals upheld the president's extraordinary action, the Supreme Court refused to review its decision, handing the president's lawyers a terrible precedent for the next time around.
Until the Supreme Court chooses to address this issue, the Padilla precedent will serve as legal authority for sweeping hundreds or thousands of citizens into long-term detention as "enemy combatants." They will be stripped of the hard-won protections of the criminal law, guaranteed by the Bill of Rights. As enemy combatants, they will only receive a hearing before a military tribunal, not a trial by a jury of their peers. And it will be up to them to establish whether the military has made a mistake in sweeping them into detention or not. So much for the presumption of innocence.
After a couple of years, perhaps the Supreme Court will sharply restrict the power of the president to make war on his fellow citizens. But perhaps not -- after all, the Court has never formally overruled its infamous Korematsu decision upholding the long-term detention of Japanese-Americans during the Second World War.
It is folly to wait to find out. If we are worthy of our freedom, we should be prepared to take its preservation into our own hands, and create a new statutory framework to control government power after the next attack.
The emergency statute should recognize that extraordinary powers are indeed justified in the immediate aftermath of an attack. There is a clear and present danger that the terrorists have already organized a second strike, and it is imperative to take special steps to disrupt the plans before it is too late. As a consequence, Congress should authorize short-term detentions on reasonable suspicion -- so long as they remain short-term.
At the same time, the new framework must prevent reasonable emergency measures from becoming permanent restrictions on our freedoms. First and foremost, it should impose strict limits on unilateral presidential power. Presidents should not be authorized to declare an emergency on their own authority, except for a week or two while Congress is considering the matter. Emergency powers should then lapse unless a majority of both Houses vote to continue them -- but even this vote should be valid for only two months. The president must then return to Congress for reauthorization, and this time, a supermajority of sixty percent should be required; after another two months, the majority should be set at seventy percent; and then eighty percent for every subsequent two-month extension. Except for the worst terrorist onslaughts, this "supermajoritarian escalator" will terminate the use of emergency powers within a relatively short period.
I have no stake in these particular details. My aim is to provoke a debate in the spirit of the Founders, seeking to adapt the principles of checks-and-balances to the distinctive problems of the twenty-first century.
For the past five years, this debate has been sidetracked by extravagant claims for presidential power and exceptional timidity from Congress. But now that a Democratic takeover of Congress is a real possibility, the challenge will be to channel popular protest into constructive forms. It will be up to the Democrats to demonstrate that they do indeed take terrorism seriously, but in a way that honors the best of our constitutional tradition. The president has given us a false choice, setting presidential powers against traditional freedoms. But a new Congress should lead us to a more sober balance -- between short-term emergency powers and the long-term preservation of our heritage of freedom.
* This sentence has been corrected from the original.
Bruce Ackerman is a professor of law and political science at Yale, and author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.
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