JUST POSTED ON TAP ONLINE: IN CASE OF EMERGENCY. Bruce Ackerman argues that we should act now to devise a new statutory frameword for federal emergency powers -- before the next terrorist attack sweeps away the prospects of checking the government's powers.
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.