BEFORE THE NEXT ATTACK

Vol. 17 No. 2 (February, 2007) pp.150-152

BEFORE THE NEXT ATTACK: PRESERVING CIVIL LIBERTIES IN AN AGE OF TERRORISM, by Bruce Ackerman. New Haven: Yale University Press, 2006. 240pp. Cloth $26.00/£25.00. ISBN: 9780300112894. Paper. $17.00/£10.99. ISBN: 9780300122664.

Reviewed by Sara C. Benesh, Department of Political Science, University of Wisconsin, Milwaukee. Email: sbenesh [at] uwm.edu.

This is not a war. This is not a crime. This is an emergency.

Thus begins Bruce Ackerman’s characterization of the post-September 11th situation in which we find ourselves, arguing that calling terrorism a war or a crime is incorrect and dangerous; rather, he argues, we are in a state of emergency and, as such, ought to establish governing guidelines that both acknowledge that fact and protect us from long-term damage to civil liberties. His book is a prescription on how best to do this.

He begins by defending his claim that, while executives love “war talk,” the “war on terrorism” is anything but a war. Wars have ends, usually resulting in a signed treaty between nations. And, declaring war on terrorism, which is a technique, makes little sense. A war also poses a political threat; in a classic war, one country seeks to disassemble the political order of the other. Terrorism, on the other hand, is only a physical threat. Terrorists do not wish to occupy or rule the country; they wish only to disrupt it. According to Ackerman, treating terrorist attacks as wars actually does what the terrorists cannot do: It threatens our country’s existence by threatening the liberties upon which it was founded. Using current situations as examples of the potential for long-term damage to freedom of such war talk (HAMDI, PADILLA), Ackerman makes a strong claim that what we are in is not a war.

Terrorist acts also do not, according to Ackerman, fit comfortably into the criminal code. The problem, he suggests, is that “the normal operation of the criminal law presupposes the effective sovereignty of the state, but a major terrorist attack challenges it” (p.43). As soon as people doubt the viability of the state, Ackerman argues, extraordinary powers in criminal investigation and prosecution, perhaps necessary during the immediate aftermath of the terrorist attack, become normalized and the criminal code, therefore, becomes more oppressive.

Rather than couching the current (and potential future) terrorist problems as either a war or a crime, Ackerman suggests we call it what it is: an emergency. Rather than normalizing extraordinary criminal measures, his plan keeps it obvious that they are extraordinary. Rather than engaging in war talk, he couches the issue as one of a temporary emergency followed by a reasoned reaction, all of which is contained in a written document: an emergency constitution. His emergency constitution remedies what he sees as shortcomings in our current handling of [*151] emergencies (leaving too much to judges) and with the treatment of emergencies in the constitutions of other countries (which are limited to invasions and coups). He seeks “an effective short-run response without doing long-run damage” (p.68). His prescription is both creative and sensible; but is it realistic?

He would create a framework statute since Constitutional Amendment would prove too difficult and would not be necessary. The goal would be to minimize the likelihood of a second strike while also taking care to end the emergency when it is no longer needed. In order to reach those goals, he offers extraordinary power to the executive, but only subject to a “supermajoritarian escalator,” which requires, as its name implies, a larger and larger majority of Congress to continue the state of emergency.

In the emergency short term, Ackerman would allow for preventative detention, but would also include reparations later, if those detained were innocent, and provide some protections from arbitrary treatment including a bureaucratic identification, 45-day detention limits (with possible extensions), interrogation guidelines (no torture), emergency due process rights and access to an attorney, and the ability to challenge any terrorist designation. The courts would be charged with overseeing such treatment.

He provides for minority (party) oversight wherever possible, includes language to protect expression, and requires affirmative steps to continue the emergency. He also suggests that these emergency powers be granted only in exceptional circumstances; only when, he says, the attack is “on the scale of those which occurred on September 11, 2001” (p.93). Judges would assure the emergency is significant enough to invoke the emergency constitution and would be sure the supermajoritarian escalator is honored; that the President give up the emergency powers when Congress deems it time to end them.

In addition, he suggests that current lines of succession, in all of the national branches of government save the Senate, need to be rethought and retooled. A significant attack on Washington, DC, would be disastrous, he says, because we could be left with a bureaucrat no one knows or trusts as President, a tiny House, and no Supreme Court. The Senate would be okay, he says, because the Governors would appoint successors, which would allow both for well-known politicians in the chamber as well as continuity in terms of party. The other branches are totally ill-equipped to deal with a major catastrophe, however.

In terms of Presidential succession, Ackerman suggests a change in order to ensure both policy continuity and “statesmanship,” or political accomplishment. He would eliminate the “bumping mechanism” in the current statute and reconfigure the line such that the Senate majority and minority leaders would be in the line rather than the Senate pro tem. He also suggests, in order to keep policy continuity, that the President choose between the Speaker of the House and the minority leader in the House or, from the Senate, either the majority or minority leader, as next in [*152] line after the Vice President at the start of his term. He also suggests that the Secretary of Defense be moved to the end of the list along with the secretary of homeland security and that, perhaps, a retired senior statesman be added as “minister without portfolio” to be sure that, if the President, Vice President, party leaders in the House and Senate, the Secretaries of State and the Treasury, and the Attorney General are all unable to serve, the country would still have a well-known and trusted figure as its President. (He uses Colin Powell and George Mitchell as examples.)

As for the House for which there is no current means of replacement without special elections for each vacant seat, he suggests the election of Vice Members. While it is unclear what they would do in times of peace (day jobs?), Ackerman argues that this is both consistent with the constitution and far preferable to waiting for special election, perhaps relying on a “rump” Congress of small size and questionable representation.

Finally, the Supreme Court would be reconstituted by reliance on the Chief Judges of the U.S. Courts of Appeals (via a lottery, since there are twelve), on the same constitutional premise that allows for use of visiting district judges on the circuit courts. This would, he argues, save judicial independence (by not allowing an emergency President to appoint a whole new Court who will then either serve for life or serve a shorter, emergency period) and keep our best jurists on the Supreme Court.

One can (and some have) questioned various aspects of Ackerman’s prescription, and the debate, I think, is welcomed. (Is detention constitutional in light of the suspension clause? Is it morally right to allow for any sort of preventive detention? Is it realistic that a framework statute will be strong enough to resist the problem of a more permanent suspension of civil liberties better than the current “war” framework? Is it politically viable? Should judges have a larger role? Is it too much of a solution to a problem of indeterminate likelihood?) What Ackerman does is present an interesting, “outside the box” solution to the problem of curbing terrorism without curbing liberties (at least in the long term), and he does it in a convincing, engaging way. Especially foresighted, I think, are the proposals for rebuilding the House and the Court in the event of a governmental decapitation. While it is, in some ways, “a downer of a book” (p.9), it sure would be nice if Congress would pay some heed and at least include the Ackerman perspective in a dialogue over what should/could be done to better prepare us for “the next attack.”

CASE REFERENCES:

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

RUMSFELD v. PADILLA, 542 U.S. 426 (2004).

*********************