Is there constitutional substance to the “war on terror”? The rhetoric of war has paid political dividends for President Bush, but that does not make it a compelling legal concept. The classic war is between sovereign states. The conflicts with Afghanistan and Iraq were wars; the struggle against al-Qaeda is not. And in contrast to classical wars, the war on terrorism will never end. So if we choose to call this a war, we will never return to a legal world in which individual rights are respected as a matter of course.
The Supreme Court has emphasized this point. In a recent decision, Justice Sandra Day O'Connor upheld the power of the president to detain Yaser Esam Hamdi as an enemy combatant as long as “United States troops are still involved in active combat in Afghanistan,” and not for a never-ending war on terrorism. Such a step, she cautioned, would require a reconsideration of existing principles.
This won't stop presidents from pressing the matter. Almost two centuries ago, Andrew Jackson was making war on the Bank of the United States. More recently, presidents have waged wars on drugs, crime, and poverty. Even at its most metaphorical, martial rhetoric gives presidents a chance to invoke their mystique as commander in chief.
Nevertheless, expansive presidential claims shouldn't be dismissed out of hand. In one respect, the al-Qaeda threat really is different from other criminal conspiracies. Mafiosi are generally content to allow government officials to flaunt their symbols of legitimacy so long as gangsters control the underworld. But the point of a terrorist bomb is to challenge government. It can cause widespread panic as citizens feel the foundations of public order crumbling beneath their feet.
The only way for government to meet this challenge is to do everything plausible to prevent a second strike. This is why the president's war talk resonates so broadly: The 9-11 attacks are indeed similar to Pearl Harbor in their challenge to American sovereignty, and they do require an extraordinary response.
But instead of permitting a never-ending war on terrorism, we should develop a different tradition of our law. When a natural disaster strikes, we expect a governor to declare a state of emergency. We should take the same tack in confronting terrorist strikes.
Crafting an emergency statute is tricky. Only a massive strike should authorize the president to declare an emergency, and he should be authorized to act unilaterally only for a week or two -- long enough for Congress to consider the matter. The emergency should expire unless a majority of Congress supports the president. After two months, the matter should return to Congress for reauthorization, and this time, a 60-percent super-majority should be required for another two-month extension; the next should require 70 percent, and 80 percent thereafter.
Except for the worst terrorist onslaughts, this “supermajoritarian escalator” would terminate the use of extraordinary powers after a short period. And while the emergency lasts, judges should be empowered to intervene to prevent torture and other abuses. Courts should also limit preventive detention. Nobody should be detained for more than 45 days, and then only if authorities have reasonable suspicion of terrorist activities. Once 45 days are up, the government must satisfy the higher standards required for criminal prosecution.
Terrorists will strike again. And while we may stop most conspiracies, one major attack every decade could generate cycles of hysteria that would do irretrievable damage to our freedom.
If we are wise, we will use this moment to create a new legal structure to control the panics that loom ahead. Justice O'Connor's remarks deserve to be taken seriously, but it is too big a risk to rely on the Court to save us from an escalating war on terrorism.
Our Constitution authorizes the suspension of habeas corpus “when in cases of invasion and rebellion the public safety shall require it.” This clause provides authority for a carefully controlled emergency statute, and we should not wait till the next terrorist strike to take action.
Bruce Ackerman is a professor of law and political science at Yale University and the author of The Emergency Constitution.
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