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Terrorism and civil liberties
March/April 2006
by Bruce Ackerman

Bruce Ackerman is the Sterling Professor of Law and Political Science. This essay is adapted from Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, forthcoming this spring from Yale University Press.

At the core of President Bush’s sweeping claims to power as commander-in-chief is a metaphor: the “war on terror.” Only last summer, Donald Rumsfeld denounced the term as misleading, and tried to convince the president to banish the “war on terror” from the administration’s political vocabulary. He failed, but from a constitutional perspective, he had the better of the argument.

Terrorism is merely the name of a technique: the intentional attack on innocent civilians. But war isn’t a technical matter. It is a life-and-death struggle against a particular enemy. We made war against Nazi Germany, not the U-2 rocket.

Once we allow ourselves to declare war on a technique, we open up a dangerous path, authorizing the president to lash out at amorphous threats without the need to define them. There are tens of millions of haters in the world, of all races and religions. All are potential terrorists, and all the rest of us are at risk of being linked to one or another terrorist band.

There is a second big flaw. By calling it a war, we frame our problem as if it involved a struggle with a massively armed major power. But modern terrorism has a very different genesis. It is more a product of the unregulated marketplace than massive state power.

We are at a distinctive moment in modern history: the state is losing its monopoly over the means of mass destruction. And once a harmful technology escapes into the black market, it’s almost impossible for government to suppress the lucrative trade completely. Think of drugs and guns. Even the most puritanical regimes learn to live with vice on the fringe. But when a fringe group obtains a technology of mass destruction, it won’t stay on the fringe for long.

The root of our problem is not Islam or any ideology, but the free market in death. If the Middle East were magically transformed into a vast oasis of peace and democracy, fringe groups from other places would rise to fill the gap. We won’t need to look far to find them. If a tiny band of extremists blasted the Federal Building in Oklahoma City, others will want to detonate suitcase A-bombs as they become available, eagerly giving their lives in the service of their self-destructive vision.

This is a very serious problem, but it is not illuminated by constitutional war-talk. Even the greatest wars in American history have come to an end: when Lincoln or Roosevelt asserted extraordinary war powers over American citizens, everybody recognized that they would last only till the Confederacy, or the Axis, was defeated. But the black market in weaponry will never end. Whatever new powers are conceded to the commander-in-chief in this metaphorical “war on terror,” he will have forever.

A downward cycle threatens. After each successful attack, the president will extend his war powers further to crush the terrorists—only to find that a very different terrorist band manages to strike a few years later. This new disaster, in turn, will create a popular demand for more repression, and on and on. Even if the next half century sees only three or four attacks like September 11, the pathological political cycle will prove devastating to civil liberties by 2050.

The root of the problem is democracy itself. A Stalinist regime might respond to an attack with a travel blockade and a media blackout—leaving most of the country in the dark, going on as if everything were normal.

This can’t happen here. The shock waves will ripple through the populace with blinding speed. Competitive elections will tempt politicians to exploit the spreading panic to partisan advantage, challenging their rivals as insufficiently “tough on terrorism” and depicting civil libertarians as softies who are virtually laying out the welcome mat for our enemies. And so the cycle of repression moves relentlessly forward, with the blessing of most of our duly elected representatives, regardless of political party.

Our traditional defense against such pathologies has been the courts. No matter how large the event, no matter how great the panic, they will protect our basic rights against our baser impulses. Or so we tell ourselves—but it just isn’t true. The courts haven’t adequately protected us in the past, and they won’t in the future. We need a strong and independent judiciary, but we need something more.

We require an “emergency constitution” that allows for an effective short-term response to major terrorist attacks, but prevents politicians from exploiting momentary panic to impose long-lasting limitations on liberty. Given the clear and present danger, it makes sense to tie ourselves to the mast as a precaution against deadly enticements. To check the descent into despotism, our eighteenth-century Framers created a system of checks and balances, and I continue this worthy tradition. My proposal adapts our inherited system to meet the distinctive challenges of the twenty-first century.

First and foremost, the emergency constitution would 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 votes to continue them—but even this vote is valid for only two months. The president must then return to Congress for reauthorization, and this time, a supermajority of 60 percent should be required; after two months more, the majority should be set at 70 percent; and then 80 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.

Defining the scope of emergency power is a serious and sensitive business. But at its core, it involves the short-term detention of suspected terrorists to prevent a second strike. Nobody should be detained for more than 45 days, and then only on reasonable suspicion. Once the 45 days have lapsed, the government must satisfy the higher evidentiary standards that apply in ordinary criminal prosecutions. And even during the period of preventive detention, judges should intervene to protect against torture and other abuses.

In speaking of an emergency constitution, I don’t mean to be taken too literally. Almost nothing I propose will require formal constitutional amendment. The “emergency constitution” can be enacted by Congress as a framework statute governing responses to terrorist attack. But this won’t happen unless we can conduct a constitutional conversation in the spirit of our eighteenth-century Founders.

In offering up my proposals, I’m not building from the ground up. I’m seeking to develop ideas and practices that are already in common use. The newscasts constantly report declarations of emergency by governors responding to natural disasters—and though this is less familiar, American presidents regularly declare emergencies in response to foreign crises and terrorist threats. My aim is to develop these well-established practices into a credible bulwark against the presidentialist war-dynamic.

The goal is to provide a framework that will channel the panic following a terrorist attack into a new constitutional direction. In the aftermath of catastrophe, we would no longer turn on the television to see the president pledging himself to a further escalation of the “war on terror.” We would hear a different message:

My fellow Americans, as we grieve together at our terrible loss, you should know that your government will not be intimidated by this terrorist outrage. This is no time for business as usual, but for urgent action. I am asking Congress to declare a temporary state of emergency that will enable us to take aggressive measures to prevent a second strike, and seek a speedy return to a normal life, with all our rights and freedoms intact.

We are in a race against time. It takes time to confront the grim constitutional future that lies ahead; and more time to separate good proposals from bad ones; and more time to engage in a broad-based public discussion; and more time for farsighted politicians—if there are any—to enact a constitutional framework into law. During all this time, terrorists will not be passive. Each major attack will breed further escalations of military force, police surveillance, and repressive legislation. The cycle of terror, fear, and repression may spin out of control long before a political consensus has formed behind a constitution for an emergency regime.

Then again, we may be lucky. Only one thing is clear: we won’t get anywhere if we don’t start a serious conversation.  

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