Ackerman - 2004 - The Emergency Constitution

8/13/2019 Ackerman - 2004 - The Emergency Constitution

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The Yale Law Journal Company, Inc.

The Emergency ConstitutionAuthor(s): Bruce AckermanReviewed work(s):Source: The Yale Law Journal, Vol. 113, No. 5 (Mar., 2004), pp. 1029-1091Published by: The Yale Law Journal Company, Inc.Stable URL: http://www.jstor.org/stable/4135710.

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Essay

The EmergencyConstitutionBruce Ackermant

INTRODUCTIONTerroristattackswill be a recurringpartof our future. The balance oftechnology has shifted, making it possible for a small band of zealots towreak devastation where we least expect it-not on a plane next time, butwith poison gas in the subwayor a biotoxin in the watersupply.The attackof September11 is the prototypefor many events thatwill litterthe twenty-first century.We should be looking at it in a diagnosticspirit:What can welearn that will permitus to respondmoreintelligentlythe next time around?If the American reaction is any guide, we urgently require newconstitutional concepts to deal with the protection of civil liberties.Otherwise, a downward cycle threatens: After each successful attack,politicians will come up with repressive laws and promise greatersecurity-only to find that a differentterroristbandmanagesto strike a fewyears later.' This disaster, in turn, will create a demand for even more

t SterlingProfessorof Law and Political Science, Yale University.I presentedearlierversionsof thisEssayatthe CardozoConference n EmergencyPowersandConstitutionsndtheYale GlobalConstitutionalismeminar. am much ndebted o thecommentsof StephenHolmesand CarlosRosenkrantz n the formeroccasion,and to a varietyof constitutional ourt udgeswhoparticipatedn thelatterevent.IanAyres,JackBalkin,YochaiBenkler,PaulGewirtz,DieterGrimm,MichaelLevine,DanielMarkovits,RobertPost, SusanRose-Ackerman,edRubenfeld,and Kim Scheppelealso provided probing critiquesof previousdrafts.Thanksfinally to afabulousgroupof Yale lawstudents orresearch ssistance:LindsayBarenz, vanaCingel,InayatDelawala,David Gamage,MarkusGehring,AnandKandaswamy,ThomasPulham,and AmySepinwall.1. Therehas been a vast outpouringof work analyzingthe USA PATRIOTAct and theunilateralactions undertakenby PresidentBush and AttorneyGeneralJohn Ashcroft afterSeptember 11. For a representative sampling and furthercitations, see DAVIDCOLE& JAMESX.DEMPSEY, ERRORISMNDTHECONSTITUTION:ACRIFICINGIVILLIBERTIESNTHENAMEOF

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repressivelaws, and on and on. Even if the next half-century ees only fouror five attacks on the scale of September 11, this destructivecycle willprove devastating o civil libertiesby 2050.It is tempting to respond to this grim prospect with an absolutistdefense of traditional reedom:No matter how large the event, no matterhow great the ensuing panic, we must insist on the strictprotectionof allrights all the time. I respect this view but do not share it. No democraticgovernmentcan maintainpopularsupportwithoutacting effectively to calmpanic and to prevent a second terroriststrike. If respect for civil libertiesrequires governmentalparalysis,seriouspoliticianswill not hesitatebeforesacrificing rightsto the war againstterrorism.They will only gain popularapplauseby brushingcivil libertarian bjectionsaside as quixotic.To avoid a repeated cycle of repression, defendersof freedom mustconsider a more hard-headed doctrine-one that allows short-termemergency measures but draws the line against permanentrestrictions.Above all else, we must prevent politicians from exploiting momentarypanic to impose long-lasting limitations on liberty. Designing aconstitutionalregime for a limited state of emergencyis a tricky business.Unless carefulprecautionsare taken, emergencymeasures have a habit ofcontinuingwell beyondtheirtime of necessity. Governments hould not bepermitted o run wild even duringthe emergency;many extreme measuresshould remain off limits. Nevertheless, the self-conscious design ofan emergency regime may well be the best available defense against apanic-drivencycle of permanentdestruction.This is a challenge confrontingall liberaldemocracies,and we shouldnot allow American particularitiesto divert attention from the generalfeatures of ourproblemin institutionaldesign.Nevertheless,the distinctivecharacter of the U.S. Constitution does create special problems, which Idiscuss separatelywhen the need arises. My argumentproceeds in twostages: The first is diagnostic, the second prescriptive. The exercise indiagnosis involves a criticalsurveyof the conceptualresourcesprovidedbythe Western legal tradition:Are our basic concepts adequatefor dealingwith the distinctive features of terroriststrikes? Part I suggests that wecannot deal with our problemadequatelywithin the frameworksprovidedby the law of war or the law of crime. This negative conclusion clears the

NATIONALSECURITY 47-87 (2d ed. 2002); STEPHEN . SCHULHOFER,HE ENEMYWITHIN:INTELLIGENCEATHERING, AW ENFORCEMENT,ND CIVILLIBERTIESN THE WAKE OFSEPTEMBER1 (2002); Harold Hongju Koh, The Spirit of the Laws, 43 HARV. INT'L L.J. 23(2002); Jules Lobel, The War on Terrorism and Civil Liberties, 63 U. PITT.L. REV. 767 (2002);Patricia Mell, Big Brother at the Door: Balancing National Security with Privacy Under the USAPATRIOTAct, 80 DENV.U. L. REV. 375 (2002); and Kim Lane Scheppele, Law in a Time ofEmergency: Terrorism and States of Exception, 6 U. PA. J. CONST.L. (forthcoming 2004). MyEssay does not aim to contribute o this burgeoningiterature.nstead,I hopeto considerhowfurther yclesof repressionmaybe avoided.


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conceptual path for anotherway to confront the problem: the state ofemergency. The paradigm case for emergency powers has been animminent threat to the very existence of the state, which necessitatesempoweringthe Executiveto takeextraordinarymeasures.Part II urges a critical reassessment of this traditionalunderstanding:September 11 and its successors will not pose such a grave existentialthreat,but majoracts of terrorismcan induce short-termpanic. It should bethe purposeof a newly fashionedemergency regimeto reassurethe publicthat the situation s undercontrol,andthat the state is takingeffective short-term actions to preventa second strike.This reassurance ationale,as I callit, requires a sweeping revision of the emergency power provisionscurrently oundin manyof the world's constitutions.But it requiressomethingmore:a reconsiderationof the self-confidentAmerican belief that we are better off without an elaborate set ofemergency provisions in our own Constitution,and that we should relyprincipallyonjudges to control ourpanic-drivenresponsesto crises. PartIIItakes up this common law prejudice,and suggests why it will no longerserve us well under the conditions likely to prevail in the twenty-firstcentury.This is the point at which culturaldiagnosis gives way to constitutionalprescription.If I am right that the threat of terrorismcannot be cabinedwithin the traditionalcategories of war and crime, that we cannot rely onjudges to manage the panic-reactions likely to arise, and that existingconstitutionalprovisionsdo not focus on the reassurance ationale,we haveour work set out for us. What should a proper emergencyconstitution ooklike?I offer a three-dimensionalapproach.The first and most fundamentaldimension focuses on an innovative system of political checks andbalances, with Parts IV and V describing constitutionalmechanisms thatenable effective short-runresponses without allowing states of emergencyto become permanent ixtures. The second dimension--Part VI-integrateseconomic incentives and compensation paymentsinto the system. Finally,Part VII moves from political economy to the legal realm--proposing aframework that permits courts to intervene effectively to restrainpredictable abuses without viewing judges as miraculous saviors of ourthreatenedheritageof freedom.Part VIII confronts some American political realities. Something likemy design may prove attractive n countriesthat already possess elaborateemergency provisions. Given the formidable obstacle course presented byArticle V of the U.S. Constitution,my proposalis a nonstarteras a formalamendment.Nevertheless much of the design could be introduced as aframework tatute within the terms of the existing Constitution.Congresstook a first step in this directionin the 1970s when it passed the National


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EmergenciesAct.2 But the experienceunderthis Act demonstrateshe needfor radical revision.The next few years may well createa political openingfor serious consideration of a new framework statute, especially if theSupremeCourtacts wisely in some great cases coming up for decision inthe next yearortwo.We shall see.

I. BETWEEN WAR AND CRIMEOur legal traditionprovides us with two fundamentalconcepts-warand crime-to dealwith ourpresentpredicament.Neither fits.

A. War?The war on terrorism has paid enormous political dividends forPresidentBush, but that does not make it a compelling legal concept. Waris traditionallydefined as a state of belligerency between sovereigns. Thewars with Afghanistanand Iraqwere wars;the struggle againstOsama binLaden and al Qaeda is not.3The selective adaptationof doctrinesdealingwith warpredictably eads to sweeping incursionson fundamentaliberties.

It is one thing for President Roosevelt to designate a capturedAmericancitizen serving in the Germanarmyas an enemycombatant and try himwithout standardscrutiny by the civilian courts;4 it is quite another forPresidentBush to do the samethingfor suspectedmembersof al Qaeda.52. Pub.L. No. 94-412,90 Stat. 1255(1976) (codifiedas amended t 50 U.S.C.?? 1601-1651(2000)); see also infra Section VIII.A (discussingtwo exemplary ramework tatutesof thetwentieth entury).3. Traditional efinitionshold thata stateof warfare xistswhen states hroughhe mediumof theirarmed orces,such forcesbeingundera regular ommand,wearinguniformorsuch otheridentifiablemarks as to makethemrecognisableat a distance... conduct[] heir hostilitiesinaccordance with the international rules of armed conflict. L.C. GREEN,THE CONTEMPORARYLAWOFARMEDCONFLICT4-55 (2d ed. 2000). For the evolution of the laws of war, see THELAWSOF WAR (W. Michael Reisman & Chris T. Antoniou eds., 1994); and LAWSOFWAR ANDINTERNATIONALAW(Rene van der Wolf & Willem-Jan van der Wolf eds., 2002). The ongoingcrisis of definitionposed by the existenceof guerrilla nd terrorist roups s the subjectof muchrecent scholarship. See BRUCEHOFFMAN, NSIDETERRORISM3-44 (1998) (finding that adefinitionaldifficultyarises from confusion over the meaningof terrorism );f LIESBETHZEGVELD,ACCOUNTABILITYF ARMEDOPPOSITION ROUPSIN INTERNATIONALAW 164(2002) (notingthe uncertainty ver the status n internationalaw of internalarmedoppositiongroups).4. See Ex parte Quirin, 317 U.S. 1 (1942).5. The most notorious example of presidentialunilateralism nvolves the decision toplace Jose Padilla,the alleged dirtybomber, under ndefinitedetention n a Navy brig.SeePadilla v. Rumsfeld,352 F.3d 695 (2d Cir. 2003), aff'g in part, rev'g in part, Padillaex rel.Newmanv. Bush,233 F. Supp.2d 564 (S.D.N.Y. 2002), cert.granted,No. 03-1027,2004 WL95802 (U.S. Feb. 20, 2004);see also Stephen . Vladeck,Policy Comment,A SmallProblemofPrecedent: 18 U.S.C. ? 4001(a) and the Detention of U.S. Citizen Enemy Combatants,112YALEL.J.961(2003)(outlininghebackgroundf Padilla and helegalissuesatstake); nfra


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The difference is obvious and fundamental: Only a very smallpercentageof the humanrace is composed of recognized members of theGerman military, but anybody can be suspected of complicity with alQaeda. This means that all of us are, in principle, subject to executivedetention once we treat the war on terrorism as if it were the legalequivalentof the waragainst Germany.War between sovereign states also comes to an end; some decisive actof capitulation,armistice,or treatytakes place for all the world to see. Butthis will not happen in the war against terrorism.Even if bin Laden iscaught, tried, and convicted, it will not be clear whether al Qaeda hassurvived.Even if this networkdisintegrates, t will likely morphinto otherterroristgroups. Al Qaeda is already collaboratingwith Hezbollah,6 forexample, and how will anybody determine where one group ends and theother begins? There are more than six billion people in the world-morethanenoughto supplyterroristnetworkswith haters,even if the West doesnothingto stir the pot. So if we choose to call this a war, it will be endless.This means that we not only subjecteverybody o the risk of detentionbythe Commander n Chief, but we subject everybody to the risk of endlessdetention.7If the Presidentis allowed to punish, as well as to detain, the logic ofwar-talk eads to the creation of a full-blownalternativesystem of criminaljustice for terrorism suspects. This system is already emerging in themilitary, and we are beginning to argue about the way it should beconstructed:How little evidence suffices to justify how much detention?

notes 131-132andaccompanyingext.Although he SecondCircuit ecentlyruled orPadilla, eeinfranote7, theSupremeCourtwill havethefinalwordon thiscase.6. See Dana Priest & Douglas Farah, Terror Alliance Has U.S. Worried, WASH.POST,June30, 2002, at Al; Susan Schmidt& DouglasFarah,Al Qaeda'sNewLeaders,WASH. OST,Oct.29, 2002,at Al.7. In an important pinion,the Second Circuitrecentlyoffered he most significantudicialresistance et to presidential retensionso extraordinaryowers n the war gainst errorism.tdenied that the President'sposition as Commander n Chief enabled him, without explicitstatutory uthorization,o sweep Americancitizens into militaryprisonfor indefinitedetentionsimplyby declaringhem enemy ombatants. eePadilla,352 F.3d695.Perhapso compensatefor this strongholding,the court'sopinion s full of extravagant ictathatseek to conciliate hePresident o his defeat.In particular:We .. agreethatwhethera stateof armedconflict existsagainstanenemyto whichthe laws of warapplyis a politicalquestion orthePresident, ot thecourts. d. at 712 (citing Johnsonv. Eisentrager, 39 U.S. 763, 789 (1950)). But Eisentragerinvolvedthe statusof enemyaliensoverseaswho wereengaged n theserviceof a government twar with the United States.It is a big stretch o use Eisentrageras the sourceof a politicalquestiondoctrine n supportof presidential owerto declare hatcitizensliving in Americaareenemycombatants ven thoughthey are not in the service of any hostile government.Thepowerof the Executive o expand hecategoryof warto includesuchgroupsas al Qaeda s muchtoo important questionto be treated n such casual dicta. It should be deferred or criticalconsideration ntil such time as it is squarely aisedby the facts of a realcase.


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Can detainees ever get in touch with civilian lawyers? Can these lawyersever scrutinize he evidence, or mustit remainsecret?sThese are important questions, but it is even more important tochallenge the war-talk hat makes the entireenterprise eem plausible.9Theonly legal language presently available for making this critique-thelanguageof the criminal aw-is not entirelypersuasive.But it is powerful.

B. Crime?For the criminal aw purist,the waron terrorism s merelya metaphorwithout decisive legal significance, more like the war on drugs or the

war on crime than the war against Nazi Germany. Al Qaeda is adangerous conspiracy, but so is the Mafia, whose activities lead to thedeaths of thousands through drug overdoses and gangland murders.Conspiracy s a seriouscrime, and crime fightershave special tools to dealwith it. 0 But nobody supposesthat casualtalk of a waron crime permitsus to sweep away the entirepanoply of criminalprotectionsbuilt up overthe centuries.Why is the waron terrorism ny different?Recall too the experienceof the Cold War.There was pervasivetalk ofa Communistconspiracy--and in contrast o al Qaeda,the shadowycells ofgrim-faced plotters were supportedby a great superpowercommandingmassive armies with nuclear weapons. American presidents also hadsubstantial evidence of links between domestic Communist cells andthe Soviet GRU, which was a militaryorganization. Fordecades,we were

8. The AmericanBarAssociation'sTaskForceon Terrorismndthe Lawhas issueda reporton the militarycommissionsproposedby the Bush Administration. lthoughthe Task Forcesupportshe President's eneralauthority,t recommends gainstusingthe tribunalswithout heexplicitauthorizationf Congress o prosecutepeoplewho are n the UnitedStates egally.It alsoarguesthatthe United States,as a signatory o the U.N. International ovenanton Civil andPoliticalRights,shouldabideby its obligationsunderArticle14 to ensure hatthe tribunals regenerallyopento the publicand to the media,that the trials are not unnecessarily elayed,andthatprisonershave the rightto obtain habeascorpusrelief froma U.S. court.See ABA TASKFORCE ON TERRORISM& THE LAW, REPORTAND RECOMMENDATIONSN MILITARYCOMMISSIONS6-17 (2002).9. For further cautions about the abuse of the war metaphor, see PHILIPB. HEYMANN,TERRORISM,REEDOM,NDSECURITY:WINNINGWITHOUTWAR19-36 (2003).10. For a thoughtful reappraisal of conspiracy law, see Neal Kumar Katyal, ConspiracyTheory, 112 YALEL.J. 1307 (2003). For a critical assessment of statutory enhancements to thearmory of prosecutorial tools against conspirators, see Gerard E. Lynch, RICO: The Crime ofBeing a Criminal (pts. 1-2), 87 COLUM.L. REV.661 (1987).11. Throughout much of the Cold War, there were two main Soviet intelligence-gatheringoperations. One was the KGB and its many predecessor organizations. The other was the GRU,the Chief Directorate for Intelligence of the Red Army's General Staff. GRU officers interactedwith members of the Comintern, which supervised the Communist Party of the United States, andalso supervised Communist Party agents within the U.S. government. See VENONA:SOVIETESPIONAGE ND THEAMERICANRESPONSE,1939-1957, at viii-ix (Robert Louis Benson &Michael Warner eds., 1996). For a historical account of the GRU's early activities in the UnitedStates, see DAVIDJ. DALLIN,SOVIET SPIONAGE02-13 (1955).


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only minutes away from an incident that could lead to nuclear holocaust.From a legal point of view, domestic Communist cells were virtuallyfront-line roopsin somethingvery close to a classic warbetween sovereignstates.Yet no presidentever suspendedthe normaloperationof the criminallaw by calling domestic Communists enemy combatants. 12 TheCommunist conspiracy was treated as a Communist conspiracy; theaccused were providedall the traditionalprotectionsof the criminal law. IfCold War anxieties did not overwhelm us, why should war-talkjustifyextraordinarymilitary measures against small bands of terrorists whocannotrely on the massive assistance of an aggressive superpower?

These are powerful questions that provide a crucial context forquestioning the remarkable success of the present administration inpersuadingthe public that wartime emergency measures are appropriateresponses to our present predicaments.13 Richard Hofstadter warnedAmericans long ago that they were peculiarly vulnerableto the paranoidstyle of political leadership.14We aresuccumbingyet again.'5Despite the excessive rhetoric and repressive practices, there is onedistinctive feature of our present situation that distinguishes it fromthe scares of the past. Begin with the criminal law purist's normativebenchmarks: the traditional legal response to the Mafia and otherwide-ranging conspiracies. The purist rightfully emphasizes that thecriminal law has managed to contain antisocial organizations withintolerable limits without the need for arbitrarypolice-state measures.Nonetheless, thereassurance uch analogiesoffer is distinctlylimited.Even the most successful organized crime operations lack theoverweening pretensions of the most humble terroristcell. Mafiosi aregenerally content to allow governmentofficials to flaunt their symbols oflegitimacy so long as gangsters control the underworld.Whateverelse is

12. This presidential restraint is especially noteworthy since statutory authority could havebeen stretched to support such actions. See Emergency Detention Act of 1950, Pub. L. No.81-831, tit. II, ?? 102-103, 64 Stat. 1019, 1021 (repealed 1971) (authorizing the detention, duringan Internal Security Emergency, of persons for whom there was a reasonable ground tobelieve that they would probably commit, or conspire to commit, espionage or sabotage). Therepeal of these provisions makes it far more difficult to sustain President Bush's actions to detainAmerican citizens as enemy combatants, especially in light of the Code provisionaccompanying the repeal. See 18 U.S.C. ? 4001(a) (2000); see also infra notes 130-131 andaccompanying text.13. For a probing critique along these lines, see David Luban, The War on Terrorism and theEnd of Human Rights, PHIL.& PUB. POL'YQ., Summer 2002, at 9. On the potential for strategicmanipulation of the categories of war and crime, see Noah Feldman, Choices of Law, Choices ofWar,25 HARV.J.L. & PUB.POL'Y457 (2002).14. RICHARDHOFSTADTER,he Paranoid Style in American Politics, in THE PARANOIDSTYLENAMERICAN OLITICSNDOTHERESSAYS3 (1965).15. For a historical account of civil liberties crises in the Republic, see Alan Brinkley,A Familiar Story:.Lessons from Past Assaults on Freedoms, in THEWAR ON OUR FREEDOMS:CIVILLIBERTIESN ANAGEOFTERRORISM3 (RichardC. Leone & Greg Anrig, Jr. eds., 2003).


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happeningin Palermo,the mayor's office is occupied by the duly electedrepresentativeof the ItalianRepublic. But the point of a terroristbomb isto launch a distinctly political challenge to the government.The deathscaused by terroristsmay be smaller in number than those caused by thedrug-dealingMafia.Nevertheless,terrorists'challengeto political authorityis greater.The only way to meet this challenge is for the governmenttodemonstrate o its terrified citizens that it is taking steps to act decisivelyagainsttheblatantassaulton its sovereign authority.The political dimension of the terrorist hreatmakes the lessons fromthe McCarthyeramorerelevant,but once againthere is a difference.Forallthe McCarthyite alk of the Red Menace, the dangerremainedabstract oordinarypeople. While the CubanMissile Crisisbroughtus to the brink ofWorldWarIII,16it did not conclude with an event, like the topplingof theTwin Towers,that dramatizedAmerica's incapacity o defendits frontiers.The risk of nuclear devastationduringthe Cold Warmight well havebeen much largerthanthe terroristdanger today. 7But we were lucky, andthe threat of nuclear holocaustremained a threat. In contrast, he changingtechnological balance in favor of terrorists means that events likeSeptember11 will recurat unpredictablentervals,each shatteringanew theordinary citizen's confidence in the government's capacity to fend offcatastrophicbreachesof nationalsecurity.'sParadoxically, the relative weakness of terrorists compared to theCommunistconspiracyonly exacerbatesthe political problemsinvolved inan effective response. If the Cold War threatof nuclear annihilationhadbeen realized, it would have meant the end of civilization as we know it.The survivorswould have been obliged to build a legitimate governmentfrom the groundup. Thiswill not be truein the new age of terrorism. t mayonly be a matter of time before a suitcase A-bomb obliterates a majorAmerican city, but there will be nothing like a Soviet-style rocket assaultleading to the destructionof all major cities simultaneously. Despite thehorror, he death,and the pain, Americangovernmentwill survive the day

16. Forthe classicstudy,see GRAHAM.ALLISON,SSENCEFDECISION:XPLAININGHECUBANMISSILERISIS1971).17. See JOHNLEWISGADDIS,WENOWKNOW:RETHINKINGOLDWAR HISTORY 6 (1997)( Even f this tabooonnuclearuse shouldsomedaybreakdown-a possibility heproliferationfnuclear echnologywill makemore and morelikelyovertheyears-the endof the Cold Warhasmade it most unlikely hat a global conflagration, f the kind thosewho lived through he ColdWar so greatlyfeared,would be the result. ).Paul Pillar also providesan exceptionally oberassessment f the terroristhreat hatpuncturesmanyof thehysterical ubblesof themoment.SeePAULR. PILLAR,ERRORISMNDU.S. FOREIGNOLICY2 (2001) ( Givensuch challenges,development f a CBRN[chemical,biological,radiological, rnuclear] apabilityo causemasscasualtieswouldrequire major, ophisticated rogramhat s well beyond he reachof thegreatmajority f terrorist roups. ).18. For a usefulintroductiono the social-psychologicalmechanisms eneratingmasspanic,see Cass R. Sunstein, Terrorismand Probability Neglect, 26 J. RISK& UNCERTAINTY21 (2003).


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after the tragedy.And it will be obliged to establish-quickly-that it hasnot been thoroughlydemoralizedby the lurking erroristunderground.C. Reassurance

So neither of the standard egal rubrics s really adequate.The rhetoricof war does express the shatteringaffrontto nationalsovereigntyleft in theaftermathof a successful terroristattack.But when translated rompoliticsto law, it threatensall of us with indefinite detentionwithout the traditionalsafeguards developed over centuries of painful struggle. The rubric of thecriminal law has proved itself adequate (with ongoing fine-tunings) toprotectfundamental ightswhile handlingserious criminalconspiracies,butonly within a social context thatpresupposesbroad-ranging onfidence inthe government's general capacity to discharge its sovereign functions.When this premise is called into questionby a successful terroristattack,adistinctive interestcomes intoplay.Call it the reassurancefunction: When a terrorist attack places thestate's effective sovereignty in doubt, government must act visibly anddecisively to demonstrate o its terrorizedcitizens thatthe breachwas onlytemporary,andthatit is takingaggressiveaction to contain the crisis and todeal with the prospectof its recurrence.Most importantly,my proposalforan emergency constitution authorizes the governmentto detain suspectswithout the criminal law's usual protections of probable cause or evenreasonablesuspicion.Governmentmay well assert otherpowers in carryingout the reassurancefunction, but in developing my argument,I shall befocusing on the grantof extraordinary owersof detentionas theparadigm.My aim is to design a constitutional ramework or a temporary tateofemergency that enables governmentto dischargethe reassurancefunctionwithoutdoing long-termdamageto individualrights.

Easier said thandone.II. RE-RATIONALIZINGEMERGENCY

Written constitutionstypically deal with states of emergency, thoughsometimes in a rudimentaryashion.Before descendinginto the details, it ismore important o reconsider the fundamentalrationaleguiding traditionalefforts.Call it the existential rationale: It is invokedby the threatof an enemy

invasion or a powerful domestic conspiracy aiming to replace the existingregime. The state of emergency enables the government to takeextraordinarymeasures n its life-and-death trugglefor survival.These apocalypticscenariossuggest greatcautionin limiting the scopeof emergency powers on those occasions-hopefully rare-when they are


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legitimately deployed. For example, Article 16 of the French Constitutionof the Fifth Republic authorizes the President [to] take[] the measuresrequiredby these circumstances, ndrefuses to declareanythingoff-limitsduring he strugglefor survival.'19The French solution is undoubtedly extreme, but it cannot becategoricallyrejectedwithin the horizonframedby the existentialrationale.A constitution's framers cannot know the details of the particularapocalyptic threatendangeringthe regime before it happens. Given theirignorance, any effort to restrict emergency powers may deprive thegovernmentof the very tools it needs to counter the threat o its survival.20Abraham Lincoln said it best when referringto the suspensionof habeascorpus: [A]reall the laws, butone, to go unexecuted,and the governmentitself go to pieces, lest that one be violated? 21But Lincoln's one-liners do not resolve all doubts.22A grantof carte

19. Article 16of the FrenchConstitutionuthorizes he President f theRepublic o exerciseemergencypowers [w]hen he institutions f theRepublic, he independence f theNation,theintegrityof its territory r the fulfillmentof its internationalommitments re underseriousandimmediatethreat,and when the proper functioningof the constitutionalpublic powers isinterrupted. CONST. rt. 16, translated in 7 CONSTITUTIONSFTHECOUNTRIESFTHEWORLD:FRANCE(GisbertH. Flanzed.,2000).The President otonlydecideswhether particularhreatqualifies under the two conditions,but also how long the state of emergencyendures.SeeFRANCOISAINT-BONNET,'ETATD'EXCEPTION5 (2001); MICHiLEVOISSET,L'ARTICLE 6DE LA CONSTITUTIONU 4 OCTOBRE958, at 26 (1969). Worse yet, both conditions may beinterpretedo authorizepresidential owersin situations allingfar shortof genuineexistentialthreats.Forexample, he workinggroupof the Ministryof Justiceconvened o commenton thedraftconstitution uggested hatArticle 16 mightbe invokedto protectagainsta generalstrikethateffectivelyendangered la vie de la nation. VOISSET,upra,at 22 (citingofficial recordsoftheconstitutional eliberations). imilarly,Article 16 does not envision he total ncapacitationfgovernmental perations,but only theirpartialdisruption.This is implied,for example,by atextualprovisionpermitting arliamento conveneand remainpermanentlyn sessionduring heperiodof the emergency-a condition nconsistentwith totalparalysis.See CONST. rt.16;seealso VOISSET,upra, at 31-32 (citing Jean Lamarque,La Theorie de la N&essite et / 'Article16 dela Constitution de 1958, 77 REVUEDUDROITPUBLICETDE LA SCIENCE OLITIQUEN FRANCEETAL'ETRANGER58(1961)).Article 16 has beeninvokedonly once--by President e Gaulle n1961 in response o an attemptedmilitary nsurrectionn Algeria.This seems to have been anappropriateesponse o the crisis, thoughthe Presidentwas much criticized or his decision tocontinue he state of emergency or monthsafterthe putschhadbeen suppressed. ee VOISSET,supra,at26. The constitutionalextprovidesabundantotential or this sortof abuse.20. This rationale orthe Frenchapproachs explicitlypresentedby FrangoisSaint-Bonnet.See SAINT-BONNET,upra note 19, at 16.21. AbrahamLincoln,Messageto Congress n Special Session (July4, 1861), in 4 THECOLLECTEDORKSOFABRAHAM INCOLN21,430 (Roy P. Basler ed., 1953).22. DanielFarber rovidesa moderndefenseof Lincoln'sapologia.At onepoint,he suggeststhat Lincoln's actionsare consistentwith our currentviews of legitimateexecutivepower.DANIELFARBER, INCOLN'S ONSTITUTION63 (2003). At anotherpoint, he remarks:

In short,on carefulreading,Lincolnwas not arguing or the legal powerto takeemergency actions contraryto statutoryor constitutionalmandates.Instead,hisargumentit well within he classic liberalview of emergencypower.Whileunlawful,his actions could be ratifiedby Congress f it chose to do so ( trusting,hen as now,that Congresswould readilyratifythem ).The actionswere also morallyconsistentwith his oathof office( wouldnot theofficial oathbe broken.. ? ).Id.at 194.


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blanche poses obvious risks of abuse, and many thoughtfulconstitutionalistshave insistedon protectingcore civil andpolitical libertiesduringeven the most severe crises. The modem GermanConstitution,forexample,adoptsthis view,23reflectingthe catastrophic ole thatthe WeimarConstitution's broad emergency provisions played in the Nazi ascent topower in the 1930s.24Our present problem requiresus to move beyond this classic debate.Terroristthreats do not trigger the existential rationale, but require thearticulationof a different framework for emergency power. To make thekey point, distinguishbetween two different dangers posed by terrorism:the physical threatto the populationand the political threatto the existingregime.Future attacks undoubtedly pose a severe physical threat: The nextmajorstrikemay kill hundredsof thousands,or even millions. But they donot pose a clear and present danger to the existing regime. Even ifWashingtonor New York were decimated,al Qaedawould not displacethesurvivingremnantsof political authoritywith its own rival governmentandpolice force. Theterroristswould remainunderground,hreateninga secondstrike,while the rest of us painfullyreconstructedour traditional cheme ofgovernment on the ground-providing emergency police and healthservices, filling vacancies in establishedinstitutions,and moving forward,howevergrimly, into the future.

I am a liberal,butI rejectFarber's classic iberalview of emergencypowerin thebravenew world inaugurated y September11. We should not content ourselveswith retroactivecongressional approval. We should insist, instead, upon ongoing legislative review andreauthorizationf extraordinaryowers.See infraPartIV. Fora morenuancedview of Lincoln'sconduct, see J.G. RANDALL,CONSTITUTIONALROBLEMS NDERLINCOLN18-39 (1926).23. TheGerman mergencyprovisionsbroadlyauthorize he centralgovernmento establishpublic orderwithoutregardto the powers normallyreservedto the states or the limitationsnormally mposedon military operations.But they endorseonly very limited incursionsonfundamental ights-namely, the detentionof individuals or up to four days without udicialhearingsand the confiscationof propertywithoutcompensation r othernormal afeguards. eeGRUNDGESETZrt. 115c(2)(1)-(2).As a further afeguard,he constitutionknownas the BasicLaw) explicitly providesthat [n]either he constitutional tatus nor the performance f theconstitutionalunctions f the FederalConstitutional ourtor its Judgesmaybe impaired. d. art.115g, translated in 7 CONSTITUTIONSFTHECOUNTRIES FTHEWORLD:GERMANY 7 (GisbertH.Flanzed.,2003).For further iscussion, ee infranotes25, 54-55.Among more recentconstitutions,hat of SouthAfrica is notable for the broadrangeoffundamental ights it expresslyprotectsagainstinfringement uringemergencies.See S. AFR.CONST. 37(5)-(6)(providing xplicitsafeguardsegarding Equality, HumanDignity, Life,Freedomand Security of the person, Slavery,servitudeand forced labour, Arrested,detained, ndaccusedpersons, ndcertain ightsof children, s well as extensiveprotectionsorpersonsdetainedwithouttrial duringthe emergency).The Polish, Portuguese,and SlovenianConstitutionsalso provide noteworthyenumerations f protectedrights. See KONSTYTUCJARZECZYPOSPOLITEJOLSKIEJart. 233; CONSTITUICAO A REPUBLICAPORTUGUESA rt.19(6)-(7); CONSTITUCIO'ESLOVENIArt. 16.24. See CLINTON OSSITER, ONSTITUTIONALICTATORSHIP9-73 (Transaction Publishers2002) (1948).


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1040 TheYale LawJournal [Vol. 113:1029

Governmentwill not disintegratein the face of a terrorist hreat,butpoliticianswill have a powerfulincentive to abusethe reassurance unction.In their eagerness to calm the prevailing panic by taking effective stepsagainst a second strike, they will destroy civil and political liberties on apermanentbasis. Ourconstitutionalproblem s not that the governmentwillbe too weak in the shortrun,but thatit will be too strong n the long run.This diagnosis sets a different challenge for constitutional design.Accordingto the existentialrationale,it seems a great luxuryto worrytoomuch about the long-run fate of civil and political liberties: If theconstitutionalorderdisintegrates, t will be up to somebody else to worryabout the long run. According to the reassurancerationale, however, theregime is going to staggeronward,and the challenge is to provide it withthe tools for an effective short-runresponse without doing unnecessarylong-rundamage.This means that French-style emergency regimes are categoricallyinappropriatemodels for the terrorist threats confronting the maturedemocracies of the twenty-first century. The last thing we want is toauthorize he President o do whateverhe considersnecessaryfor as long ashe thinks appropriate.This makes it far too easy for him to transform hepanic following a horrificattack into an engine of sustainedauthoritarianrule and bureaucraticrepression. We should be searching instead forinnovativedesigns that make it difficult for emergencyactionsto spiraloutof control,destroyingthe frameworkof limited government hatthey weresupposedto protect.This common project will assume different forms in differentconstitutionalcultures. Many countries aroundthe world already possessrather elaborate provisions for emergency power, but these have beenlargely designed with the existential rationalein mind. If they are of theFrench type, they should be thoroughlyrevised; if they are of the morerestrictive Germansort, they should be rethought.Existing constitutionallimitationsmay not make sense withinthe new framework.2 In marking heway forward, it will not suffice to classify existing provisions after acanvass of the legal status quo. A more fundamentalanalysis is required,beginning with first principles: What should an emergency constitutionlook like if it systematically focuses on the reassurancefunction as itsraisond'etre?

25. Germany, or example,has an elaborateset of emergencyprovisions,but none wasfashionedwith terrorismn mind.Article35, which concerns hreats o publicorder,may readilyapply,see GRUNDGESETZrt.35, but it is a ratherweakprovisionauthorizingpecialassistancebetweenthe federaland stategovernments.TheBasic Law's otheremergencyprovisionsdo notseem to applyat all. Theyinvolve threats o the veryexistenceof the state-either from nternalforces,see id. art.91, or external nemies, ee id. art.115a.Someof theseprovisions ontemplatetheoperation f politicalchecksandbalancesbefore hey maybe exercised.See infranotes54-55.


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In seeking a comprehensiveanswer to this question,we will find thatother countries-most notably Canada and South Africa-have alreadycome up with partialsolutionsthat warrantworldwideattention.26 ut onlysystematicmodel-buildingwill enable us to identifythe innovativebits andpieces swirling about in a sea of law shaped by the existential rationale.Ifthis initial exercise is successful, it can provoke a broader multinationaldebate that may help motivate sustained reconsideration of existingemergencyprovisionsin theyears ahead.I expect a more skeptical reception to my model-building efforts incountries, like the United States, that do not already possess a complexconstitutional ext regulatingemergency power. Withinthese constitutionalcultures, my call for the self-conscious creation of a new emergencyframeworkmay strike most thoughtfulobservers as distinctly premature.Haven't we been doing well enough,thankyou, withoutan elaborateset ofemergency provisions? Isn't it far too dangerousto place the question ofemergency poweron the agendafor seriouspoliticalconsideration?These skeptical questions representthe conventional wisdom of thelargely Americanreadershipof this journal. So it is wise to confrontthemhead-on beforeproceeding.

III. THEMODEL FJUDICIAL ANAGEMENTDo we reallyneed an emergencyconstitution?Shiny new solutions may containseriousblundersthat will be difficultto change once solemnly enshrined in legislation or, even worse, inconstitutionalprovisions. Puttingaside the real dangerof initial mistakes,the very creation of an elaboratestructuremay increasethe frequencywithwhich officials use emergencypowers. They now handle the overwhelmingmajority of disturbing events within the traditional framework of the

criminal law. But the new machinery will normalize the rhetoric ofemergency, making extraordinary owers partof the ordinarydiscourse ofgovernment.If you build it, they will come-officials will seek to invokeemergency powers to handlemiddlingcrises, resultingin yet anothersadstoryof unintendedconsequences.To be sure, the U.S. Constitution does contain a rudimentaryemergency provision,permitting he suspensionof habeascorpus wheninCases of Rebellion or Invasion the public Safety may requireit. 27But itlargely leaves the rest to thejudicial imagination.Rather hanissuing a callfor self-conscious redesign, perhaps we should cherish the clouds thatpresentlyobscureoursubject?

26. See infra extaccompanying otes63-66,75-77.27. U.S. CONST.rt.I, ? 9, cl. 2.


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During normal times, the common law fog allows judges and otherlegal sages to regale themselves with remarkablyastringentcommentarieson the use of emergency powers, cautioningall and sundrythat they areunconstitutional xcept under the most extremecircumstances.This createsa cloud of suspicion and restrainsofficials who might otherwise resort toemergency powers too lightly. Then, when a real crisis arises,judges candisplay remarkable lexibility for the interim,while covering their trackswith confusing dicta and occasional restrictive holdings. As the crisisabates, they can then inauguratea period of agonizing reappraisal, astingdoubtupon the constitutionalproprietyof theirmomentarypermissiveness.After a revisionist decade or two, the oracles of the law can then return otheir older habit of casting aspersions on the entire idea of emergencypowers-leading to an atmosphereof genuine restraint,until the next realcrisis comes around.28So why not let this common law cycle deal with the problem ofemergencies? Won't the effort to build a new legal structure be moretroublethan it's worth?This seeminglyplausibleresponserestsupona controversialpremise.Itsupposes a lucky society in which serious emergencies arise veryinfrequently-once or twice in a lifetime. This was more or less true inAmerica duringthe last couple of centuries.Perhaps t was also true of theisland polity of Great Britain from which our common law traditionderives.29 But no longer. The realities of globalization,mass transportation,and miniaturization f the means of destruction uggest thatbombswill gooff too frequently orthe common law cycle to managecriseseffectively.Korematsuv. UnitedStates30provides a revealing example of both thestrengthsand limits of a judge-centeredapproach.I myself believe thatJustice Hugo Black-that great civil libertarian--waswrong in upholdingthe wartimeconcentration amps for JapaneseAmericans. But the fact thatJusticeBlack was a greatlibertarian uggestshow dangerous he emergencyappearedat the time to right-thinkingpeople. It seems fair, then, to viewKorematsuas a paradigmcase representing he permissive momentin thecommon law cycle.It was then followed by decades of revisionistactivitythat can be seento vindicate the common-lawyer'sconfidencein his methods.By the 1980s,

28. For a remarkablycomplacentview of this cycle, see Mark Tushnet,DefendingKorematsu?.:Reflections on Civil Liberties in Wartime,2003 WIs. L. REV.273, 283-98.29. Inboth the American nd Britishcases,it all dependson how seriousa crisis mustbe inorder to count as a genuine mergency.As ProfessorMarkTushnet'shistoricaloverviewsuggests, he last seriouscrisisoccurred fullgeneration go-during theMcCarthyndVietnamWarperiods.See id. at286-87.I fearthat he lengthyperiodwithouta crisismayleadmany egalcommentators o take an overly optimisticview of the likely future operationof judicialmanagement.30. 323 U.S. 214 (1944).


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it was hardto find a constitutionalcommentatorwith a good wordto say forthe decision.31Governmentalinstitutions slowly responded to a broaderchange in public opinion, with President Ford symbolically rescindingPresidentRoosevelt's orderauthorizing he wartimedetention n 197632andCongress grantingcompensationto inmates of the concentrationcamps in1988.33

Nevertheless,Korematsuhas never been formallyoverruled,a fact thathas begunto matterafterSeptember11. Even today, the case remainsundera cloud. It is bad law, very bad law, very, very bad law. But what will wesay after anotherterroristattack? More precisely, what will the SupremeCourtsay if ArabAmericans are herded into concentrationcamps?Are wecertain any longer that the wartime precedentof Korematsuwill not beextended to the waron terrorism ?34

Supposethat,as the currentJustices areponderingtheirdecision, thereis anotherdevastatingterroristattack.If Hugo Black fell down on the job,will his successors do any better?Another bad decision will have muchworse consequences. The war with Japan came to an end, but the waragainstterrorwill not.The result is the normalizationof emergency conditions-the creationof legal precedents that authorizeoppressive measures without any end.Sensing the gravity of this danger, two recent articles have suggesteddrasticmeasuresto avoid it. Rather hanstretching he law, officials may bewell-advised to proclaimthat the emergency requires hem to act with utterlawlessness-or so Professors Oren Gross and Mark Tushnet suggest.35

31. Agonizing reappraisal egan early,with Dean EugeneV. Rostow's famouscritiqueofKorematsu. Eugene V. Rostow, The Japanese American Cases-A Disaster, 54 YALE L.J. 489(1945).More thanfortyyearslater,Rostow claimed hat Korematsu asalreadybeenoverruledin fact,althoughheSupremeCourthasneverexplicitlyoverruled t. The case hasbeen overruledin fact because of the criticism it has received ... . Charles J. Cooper, Orrin Hatch, Eugene V.Rostow & Michael Tigar, What the Constitution Means by Executive Power, 43 U. MIAMIL. REV.165, 196-97(1988)(footnoteomitted).So it seemed n 1988,butwhatwill be theview in2008?32. See ProclamationNo. 4417, 41 Fed. Reg. 7741 (Feb. 20, 1976) (declaring thatProclamation o. 2714,whichformally ndedWorldWarII,also rescindedPresidentRoosevelt'sExecutiveOrderNo. 9066).33. See ROGERDANIELS,PRISONERSWITHOUTTRIAL:JAPANESE MERICANSN WORLDWAR II, at 88-106 (1993); LESLIET. HATAMIYA,RIGHTING WRONG: APANESE MERICANSANDTHEPASSAGEOFTHECIVILLIBERTIESCTOF1988 (1993).34. Chief JusticeWilliamH. Rehnquisteaves the matter n some doubt n his book,All theLaws but One.:Civil Liberties in Wartime. He agrees that the relocation of the Nisei (American-bornchildren f Japanese mmigrants)ccurredwithout ufficientustification.But he defends hemilitary's nternment f theirnoncitizenparents the Issei)on the grounds hat the Alien EnemyAct of 1798, 50 U.S.C. ?? 21-24 (2000), was still valid law during the World War II era.WILLIAM . REHNQUIST,LL THELAWSBUTONE:CIVILLIBERTIESN WARTIME 09-10 (1998).Althoughhe recognizes hat EugeneRostowsuggests hepossibilityof ajudicial nquirynto theentire questionof militarynecessity, he calls this an extraordinarilyubiousproposition.Id.at 205.35. See Oren Gross, Chaos and Rules.: Should Responses to Violent Crises Always BeConstitutional?, 12YALEL.J. 1011(2003);Tushnet, upranote28, at 299. Of the two articles,Professor Gross's provides a much more elaborate defense of this view.


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They recognize, of course, that this public break with the rule of law is adesperate expedient. But isn't it preferable to the normalization ofemergencyconditions?At least the legal systemwould not be corruptedbylegal precedentsthat live on indefinitely.And when the emergencycomesto an end, the lawless officials may findthemselves subjectto legal liabilityunless theirfellow citizens choose to ratifytheiractionsretroactively.36But, of course, there is a downside. Lawlessness, once publiclyembraced,may escalateuncontrollably.By hypothesis,we aredealingwitha terrorist trikethat has generatedmass panic.Once officials makea virtueout of lawlessness, why won't they seek to whip up mass hysteriafurtherand createa permanent egimeof arbitrary ule?

Gross and Tushnet offer us a grim choice: legally normalizedoppressionor a lawless police state. Before placing ourbets, it seems wiseto reconsider his high-stakes gamble.Undoubtedly, here aretimes when apolitical society is strugglingfor its very survival. But my centralthesis isthatwe are not living in one of these times. Terrorism-as exemplified bythe attackon the Twin Towers-does not raise an existentialthreat,at leastin the consolidated democracies of the West.37If Professors Gross andTushnet are suggesting otherwise, they are unwitting examples of theimperativeneed to rethink the prevailingrationalefor emergencypowers.We must rescue the concept from fascist thinkers like Carl Schmitt,whoused it as a batteringram against liberaldemocracy.38 Ratherthan indulgein melodramatic nvocationsof existential threats,liberal constitutionalistsshould view the state of emergency as a crucial tool enabling publicreassurance in the short run without creating long-run damage tofoundationalcommitments o freedomand the rule of law.39

I do not suggest that the concerns voiced by Professors Gross andTushnetare irrelevantonce we reorientthe theoryof emergencypowers tofocus on the reassurance unction.To the contrary, hey areabsolutelyrightto emphasizethat we face graverisksof legal normalization n dealingwithterroristattacks.I suggest,however, that these risks can be minimizedif wetake some of the load off judges in managingfront-line egal responses,and

36. See Gross, supra note 35, at 1111-15.37. See supra PartII.38. See CARL SCHMITT,POLITICAL HEOLOGY: OURCHAPTERSON THECONCEPTOFSOVEREIGNTY(GeorgeSchwab rans.,MITPress 1985) (1922) ( Sovereigns he who decideson the exception. ); see also Oren Gross, The Normless and Exceptionless Exception: CarlSchmitt s Theory of Emergency Powers and the Norm-Exception Dichotomy, 21 CARDOZO .REV.1825, 1825-30(2000) (consideringwhetherSchmitt sought o facilitate he destruction fliberalismanddemocracy hroughhis theoryof the exception).For moregeneraloverviewsofSchmitt's philosophy, see THECHALLENGE FCARLSCHMITTChantal Mouffe ed., 1999); andJOHNP. MCCORMICK, ARL SCHMITT'SCRITIQUEOF LIBERALISM: GAINSTPOLITICSASTECHNOLOGY1997).39. For some important recent reflections on this theme, see JOSEANTONIOAGUILARRIVERA,EN POS DE LA QUIMERA:REFLEXIONESOBREEL EXPERIMENTOONSTITUCIONALATLANTICO7-94(2000)(examininghe role of emergency owers n liberal onstitutionalism).


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create new constitutional structures hat will more reliably respondto therecurring ragediesof the coming century.We must build a new constitutionfor the state of emergency, but withmodest expectations. If terrorist attacks become too frequent, no legalstructurewill save us from a civil liberties disaster. I do not suppose, forexample, that clever constitutional design will suffice to constrain therepressive forces that may be unleashed by a Palestinian intifada thatcontinuesat its present intensityfor years andyears.40My proposalsmakethe most sense for societies afflicted by episodic terrorism-where eventslike September11 remainexceptional, but not so exceptional that we cancount on the decades-long process of common law recuperation o do its

work.Crystal balls are notoriously unreliable,but as I write these lines inearly 2004, episodic terrorism eems to be the most likely fate of the Westin general,and America in particular, or a very long time to come. Withinthis context, constitutional structurescan perform a crucial channelingfunction. Bad legal structureswill channeltemporaryneeds for reassuranceinto permanentrestrictions on liberty; good structureswill channel theminto temporary states of emergency, without permanent damage tofundamental reedoms.IV. CHECKSANDBALANCES

In designingbasic institutions o discharge his channelingfunction,wewill be proceeding on the constitutionallevel of reflection. My approachdepends crucially on the constructionof a political system of checks andbalances,and this is the subjectof the next two Parts.I thenturnto considerthe plight of the principalvictims of the state of emergency-the thousandsof innocents who will be caught up in dragnets launched under the

40. Israelhas been underanofficial stateof emergency ince its creation.UnderSection 38of the Basic Law of Israel, he Knessetmaydeclarea stateof emergencyon its own prerogative,withoutconsulting he otherbranchesof government.See BASIC AWTheGovernment, 001),?38, S.H. 165.Under he IsraeliBasicLaw,anemergency an last for no more hanoneyear,butit can be renewed ndefinitelyby simple majority ote. Undermuchmore constrainedonditions,the Executivecan declarean emergencyunilaterally. ee id. ? 38(c) (granting his powerwhenthereis an urgentneed to declarethe emergencyand it is impossibleto convenethe Knessetimmediately).This is hardlythe place for a matureassessmentof the overalloperationof emergencypowersby the Israeli authorities-a subjecton which thereexists a wide spectrumof opinion.Compare Claude Klein, Is There a Case for Constitutional Dictatorship in Israel?, inCHALLENGES O DEMOCRACY: SSAYSIN HONOURAND MEMORYOF ISAIAHBERLIN 157(RaphaelCohen-Almagord., 2000) (concluding hata constitutional ictatorship, ifferent romthe traditional mergencyregime, is an inevitability n Israel),with RaphaelCohen-Almagor,Reflections on Administrative Detention in Israel: A Critique, in CHALLENGESODEMOCRACY:ESSAYS NHONOURAND MEMORYOF ISAIAHBERLIN,upra, at 203 (arguing that administrativedetentions nder heemergency egimeareunjust).


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government'semergencypowers of detention thataim to preventa secondterrorist trike.Elementaryprinciplesof justice, as well as more functionalconsiderations,mandate ull financialcompensation or the time they spendin detention. After filling in this political and economic background,Ifinally turnto define the place of judges. While it is a mistake to dependoncourtsto managepanics on theirown, judges do play crucialbackstoppingroles within the emerging system. Onthe macro-level,theyhelp enforcethespecial emergencysystem of checks andbalances;on the micro-level, theyprotectthe detainees' corerightsto decent treatment.A. From Ancientto Modern

The RomanRepublic represents he firstgreatexperimentwith states ofemergency, and it serves as an inspirationfor my heavy reliance on apolitical system of checks and balances.At a moment of crisis, the Senatecould propose to its ordinarychief executives (the two consuls) that theyappoint a dictatorto exercise emergency powers. Sometimes the consulsactedjointly; sometimes one was chosen by lot to make the appointment.But in all cases, there was a rigid rule: The appointingofficial could notselect himself. As a consequence,the consuls had every incentive to resistthe call for a dictatorshipunless it was really necessary.There was a secondbasic limitation: Dictators were limited to six months in office. The termwas not renewableunderany circumstances.About ninety dictators werenamed during the three-hundred-yearhistory of the office, but noneviolated this rule. And no dictatorused his extraordinary owers to nameanotherdictatorat the end of his term.41

During his six-month tenure, the dictator exercised vast military andpolice powers, with only a few significant limitations. Most notably, heremained dependent on the Senate for financial resources; he could notexercise civil jurisdictionas a judge (thoughhe did have the power of lifeanddeath);andfinally,he was chargedwith suppressingdomesticupheavaland protecting against foreign attack, but he had no authorityto launchoffensive wars.42The Roman model was very clever, but I do not think that it is eitherdesirable or practicalundermodem conditions.In contrastto the Romans,we do not depend on a rotatinggroup of aristocratsexercising executivepowers for very short terms. (The consuls rolled over every year.) Wedependon a professionalpolitical class with a lifetime commitment o high

41. For a concise description f the Romandictatorship,ee ROSSITER,upra note 24, at15-28.42. Id. at 24. Duringthe laterhistoryof the office, the dictatorshipwas also occasionallyemployed orceremonial urposes rother esserfunctions, utthese weremerelyderivative sesof theposition. d. at 22.


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office. We select the most seasoned professionalsto serve as presidentorprime minister, and it would be odd to replace them with a temporarydictator ust when the going got roughest.If we are lucky enoughto have aWinston Churchill when we need him, we should rejoice in our goodfortune-not pushhim out for fearof his dictatorialambitions.Nevertheless, the Roman concern is a very real one. Indeed, it is nodifferent fromthe anxietythatmotivatedthe model of judicial management.Once we create an elaborate structureauthorizingextraordinarypowers,there is a dangerthatordinaryofficials will exploit the system to createtoomany emergencies, using a wide rangeof repressivemeasuresdespitetheadequacy of more standard rameworks nvolving the criminal law. If theRoman system of executive displacement is implausible, are there otherpolitical checks andbalancesthatwill serve to contain this risk?B. TheSupermajoritarianEscalator

Europeannations have had a long and unhappyhistorical experiencewith explicit emergency regimes. Speaking broadly, these regimes havetended to give executives far too much unfetteredpower, both to declareemergencies and to continue them for lengthy periods.43This is a fatalmistake. The Executive should be given the power to act unilaterallyonlyfor the briefest period-long enough for the legislature to convene andconsider the matter,but no longer. If the legislatureis already in session,one week seems the longest tolerableperiod; f not, two weeks at most.44The state of emergency then should expire unless it gains majorityapproval.But this is only the beginning. Majority supportshould serve tosustain the emergency for a shorttime-two or three months.Continuationshould requirean escalating cascade of supermajorities: ixty percent forthe next two months;seventy forthe next;eightythereafter.

Thereare matters of principlehere, but also important ssues involvinginstitutional incentives. Principles first. The need for repeatedrenewal atshort intervals serves as a first line of defense against a dangerousnormalizationof the stateof emergency.Theneed for a new vote every two43. ClintonRossiterprovidesan illuminating eview of the use of emergency powers inGermany,France,and Englandduringthe nineteenthcentury,continuing hroughthe 1930s.See id. at 31-205.44. Of course,the constitution hould containspecial arrangementsf the attackmakes itimpossible o convenea legislativequorum.Forexample,the GermanBasic Law establishesa

joint committeeof the Bundestagand Bundesrat o function n the place of the full legislativechambers. See GRUNDGESETZrts. 53a, 115a(2).For a suggestionon how to fill this gap in the U.S. Constitution,ee THECONTINUITYFGOV'T COMM'N,PRESERVING UR INSTITUTIONS:HE CONTINUITYOF CONGRESS2003),http://www.continuityofgovernment.org/pdfs/FirstReport.pdfsuggestinga formal constitutionalamendment o give Congress airlybroadauthorityduringa nationalemergency o fill vacantseatstemporarily).


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monthspublicly marksthe regime as provisional, requiringself-consciousapprovalfor limited continuation.Before each vote, therewill be a debatein which politicians, the press, and the rest of us are obliged to ask oncemore:Is this state of emergencyreallynecessary?The supermajoritarian escalator requires further principledcommitments.Even if a barelegislative majorityrepeatedlyvotes to sustainan extension, this should not be enough to normalizeemergency powers:We can never forget that hundreds or thousands have been placed indetention without the evidence normally required.Some may believe thatthis breach, once it has occurred,does not get worse with the passage oftime. I disagree. Preventive detention for six months or a year disruptsordinary ife far more than ncarcerationastinga week or even a month.But there is more at stake than the devastation of individual lives.Despite repeated debates in Congress or Parliament,repeated votes ofapprovalthreaten o erodethe generalsense thatemergencypowers shouldbe reserved for truly extraordinary rises. By subjecting these decisionsto increasing supermajorities, the constitutional order places theextraordinary egime on the path to extinction.As the escalator moves tothe eighty-percentlevel, everybody will recognize that it is unrealistic toexpect this degree of legislative supportfor the indefinite future. Modernpluralist societies are simply too fragmented to sustain this kind ofpolitics-unless, of course,the terrorists ucceed in strikingrepeatedlywithdevastatingeffect.The supermajoritarianase becomes even strongeronce the dangersofpolitical abuse are taken into account. A state of emergency provides awonderfulelectioneeringtool for the majorityparty: All truepatriotsmustrally aroundthe existing government n this time of need. We cannotgivein to the terroristsby allowing them to force us to changeour leaders whenthe going gets tough. This may be blather,but it will bring out the votes.Supermajoritarianscalatorsgive smallerand smallerminoritypartiesvetopower over such manipulations.Even if the minorityallows the emergencyto continueduringelections, the majoritycan no longer easily present tselfas the country'ssavior, since the supportof the minorityis fundamental othe extraordinary egime.The escalatorwill also have a salutaryeffect on the Executive. Whenextraordinary owers are authorized, he Presidentknows that he will havea toughtime sustainingsupermajoritiesn the future,and this will lead himto use his powers cautiously. The public will bridle if his underlingsrunamok or act in arbitraryways thatgo well beyondthe needs of the situation.So the political check of supermajoritieswill not only serve to make theemergency temporary,but also to make it milderwhile it lasts.In addition, the escalator will force the Executive to recognize thedistributional njustices imposed by the emergency regime. Each terrorist


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wave will generatea distinctivedemonology.Rightnow, the demons comelargely from the Arab world, but twenty years onward,they may emergefrom Latin America or China. Or they may have signed on tosome universalisticcreed, secular or religious, as in the case of the ColdWar or the still-avoidable struggle against something called Islamicfundamentalism.Each demonology will mark out segments of the population aspeculiarly appropriate targets for emergency measures, and thesupermajoritarianscalatormay play a greateror smaller role in checkingthe abuses that such discriminationinvites.45This may not operate tooforcefully in America duringthe presentwave, but it will serve as a morepotent check in Europe, given the larger size of its domestic Arab andIslamic minorities. But the next terroristwave may well shift the ethnicdistributionof political interests n very surprisingdirections.Even when the prevailing demonology casts a relatively small shadowin domestic politics, the supermajoritarianscalator will provide politicalcover for civil libertarianswho are looking for an excuse to call an end tothe emergencyregime. Immediatelyafter the terrorist trike,they canpolishtheir antiterrorist redentials by voting for the state of emergency whenonly a simple majority is required. This is a moment for maximumreassurance, and it is overwhelmingly likely that fifty-one percent ofthe legislators will support the measure regardless of protests fromtheir libertariancolleagues. So there is no real harm done if the vote isninety-nineto one rather hanseventy-fiveto twenty-five.As time marches on, contrarian legislators will be accumulatingpolitical capital that will make it easier for them to defect as the need forreassurancedeclines: I have now voted twice to continue the emergency,they can say, butenough is enough. I want to commend the Presidentforkeeping the situationundercontrol,but now thatthe situation s stabilizing,we should return o the protectionof our normal liberties. If we allow thecontinued erosion of our freedoms, the terrorists will have reallytriumphed. 46And so the vote this time is seventy-nineto twenty-one, andthe emergencycomes to an end, at least fornow.47

45. Fortherole of ajudicialcheck,see infraSectionVII.C.46. Butwill therebe enoughcontrarianegislators o serve as an effective check?Althoughthe USA PATRIOTAct passed by overwhelmingmargins in the immediateaftermathofSeptember11, the 107thCongresscontaineda substantial adreof civil libertariansbothon therightandthe left). Forexample, he ACLUcompileda scorecard n each memberof the Housebased on his or her vote on fifteen civil libertiesissues, includingthe USA PATRIOTAct:198representativesotedthe ACLUway on fiftypercentof the issues, 176on sixtypercent,150on seventy percent,and 115 on eighty percent.See ACLU, National FreedomScorecard,athttp://scorecard.aclu.orglastvisitedOct.4, 2003)(providing ninterfacehat ets visitors ookuphow theirrepresentativescored).OntheSenateside,forty-fourenators otedwith theACLUonat least threeof the five issuesincluded n its scorecard. ee id.


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C. MinorityControlof InformationThe supermajoritarianscalatorwill shorten he stateof emergencyandsoften its administration, ut it will not work miracles.By hypothesis, theemergency begins with a terrorist attack that deeply embarrassesthenation's military, police, and intelligence services. Res ipsa loquitur:Whatever hey did was not enough,andin retrospect, t will be easy to findclues that might have alerted superalert guardians of order. Thebureaucraticreaction will be swift and predictable: On the one hand,displace responsibility for past mistakes; on the other, strike outaggressively againstthe forces of evil.But especially in the beginning, the security services will be strikingout blindly. After all, if they had been on top of the conspiracy,they wouldhave intervened beforehand. So they are almost certain to be in the darkduring the early days after a terroristattack.Nevertheless, early dragnetsmay well be functional, and not only because they provide appropriatetelevision footage for calming public anxieties. While many perfectlyinnocentpeople will be swept into the net, the usualsuspects identifiedby counterintelligenceagencies may well contain a few of the genuineconspirators.If we are lucky, the detention of a few key operatorscan

disrupt existing terroristnetworks, reducing the probability of a quicksecond strikeandits spiralof fear.48Given the virtual certainty of massive error, the Executive will betemptedto keep secret all informationconcerningthe particular njusticesthat are the inevitable consequence of emergency dragnets. Thesupermajoritarian scalator will only heighten this perverse incentive.Perhapsthe Presidentor PrimeMinister can convince his partyloyalists toremain faithful when the opposition press generates a public uproar byheadlining the worst abuses wreakedupon the most sympatheticvictims.But if the emergency regime requires the increasing support of thelegislative minority,it will be hopeless for the Executive to appealto partyloyalty. Perhapsthe only hope of satisfying the supermajority equirement

Inparliamentaryystems n Europe,ndividual eputies enerallyhavemuch ess freedom factionthan in the UnitedStates,but this is typicallyoffset by a greaternumberof parties nparliamentdue to the prevalenceof proportionalepresentation. he crucialdecisionin thesecases, then,will be madeby the leadersof these parliamentaryractions, ather han individualmembers.47. Once an emergency expires, the supermajoritarianote needed for a new state ofemergency houldde-escalateon the same time scheduleunderwhichit escalatedpreviously. feighty-percentupports required,hepercentage rops o seventypercentafter wo months, hento sixty,thento fifty,as timemarches n.48. This seemsto be true n the case of theMafia,wherethe detention f a few key playerscan effectively destroy arge conspiracies.See FedericoVarese,Social Capital,ProtectionandMafiaTransplantation1 (2002) (unpublishedmanuscript,n file withauthor).


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is to treat as top secret all potentially embarrassing acts surrounding hedragnets?Despite the grave risk of partisanabuse, a simple rule requiringtotalopenness is simpleminded.Terroristsare newspaperreaders and Intemetsurferslike the rest of us, and they can learna lot about the government'ssurveillanceactivities that might allow them to escape detection. Much ofthis informationquicklydecays over time. News of particulardragnetsmaypinpoint geographicalareas that terrorists should avoid. But investigatorschange focus quickly, and old news no longerhas muchvalue a week later.Other information, however, will have more enduringsignificance. How,then,to separate he wheat from the chaff?A political system of checks and balancesprovidesdistinctivetools fora constructiveresponse. While the Executive is in charge of day-to-dayaffairs, the emergency regime returns o Congressevery two months. Thelegislaturecannot act effectively if it is at the mercy of the Executive forinformation.What is more,the stateof emergencycan surviveonly with thesupport of the increasingly large legislative coalition required by thesupermajoritarianscalator. It follows that the majority party cannot beallowed to use its normal controlover the legislatureto deny informationalaccess to minority parties. Instead, our emergency constitution should

containspecial safeguards o assurethat the minority s well-informedwhenit is asked to join the majority n authorizinga two-monthextension of theemergency regime.Members of opposition political parties should be guaranteed themajority of seats on oversight committees. The chairpersons of thesecommittees should also come from the opposition, thoughit should not beallowed to select any candidateit likes. Instead, it should be requiredtooffer a slate of three nominees to the majorityand allow majoritymembersto pick the chairperson hey find least offensive.Such practices may seem alien to Americans,who take it for grantedthat the legislative majorityshould controlall committees. But this is by nomeans true in other leading democracies. In Germany, for example,Chancellor Schroeder's Social Democratic Party controls only nine oftwenty-one committee chairmanships.49Minority control means that the

49. See German Bundestag, Organization:Committees, at http://www.bundestag.de/htdocs_e/orga/03organs/04commit/01comminf.htmllast visited Oct. 7, 2003). EventhoughtheBritishHouse of Commonsgrantsbroadcontrol o the majorityparty, he government enerallygrants chairmanships f a number of importantcommitteesto the minority.At least tencommittees represently hairedby members f minorityparties.See The U.K.Parliament, electCommitteeMembership t 18November2003, at http://www.parliament.uk/directories/hciolists/selmem.cfm(last visited Dec. 10, 2003). For general informationon the membershipandchairmanship of parliamentary committees, see ERSKINEMAY'S TREATISEON THE LAW,PRIVILEGES,ROCEEDINGSNDUSAGEOFPARLIAMENT28-39, 692-96 (Donald Limon & W.R.McKay eds., 22d ed. 1997); see also COMM.OFFICE,HOUSEOFCOMMONS, HE COMMITTEESYSTEM OF THE HOUSE OF COMMONS 13 (2003), http://www.parliament.uk/commons/


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oversightcommitteeswill not be lap dogs for the Executive,butwatchdogsfor society.50They will have a realpolitical interest o engage in aggressiveand ongoing investigations into the administrationof the emergencyregime.51The emergencyconstitutionshouldrequire he Executiveto providethecommittees with complete and immediate access to all documents. Thisputsthe governmenton notice that it cannotkeep secretsfromkey membersof the opposition and serves, without more, as an importantcheck on theabuse of power. It should also be up to the committee majorityto decidehow much information should be shared more broadly. In contrast toordinarycommittees, oversight groups will not have a strong incentive tosuppress nformationmerelybecause the government inds it embarrassing.But they will not makeeverything public since this would open themup tothe charge of giving aid and comfort to terrorism. nstead,the committeeswill be structured o make the tradeoff between secrecy and publicity in apolitically responsiblefashion.The oversight committees also should be explicitly requiredto give areport to their colleagues, in secret session if necessary, as part of thedebate on each two-month extension. Even here, they can hold backparticularly sensitive details to reduce the risks of damaging leaks.Nevertheless, they have every incentive to apprise the majority andminorityof the maincosts andbenefits of continuingthe emergencyeffort.Legislators, in turn,have the fundamentalright to pass on the main pointsto the publicas they debateand defend their votes.We have designed a permeablesieve, not an ironcladwall of secrecy.But that is just the point. In the immediate aftermathof a massive attack,the need for emergencymeasuresmay seem self-evident,butthis need must

selcom/cteesystemmay2003.pdf[T]here s usuallyan informalunderstandingboutthe partyfromwhicheach[selectcommittee] hairmanwill be chosen. ).50. In a parliamentaryystem,the identityof politicalminorities s straightforward-thesearetheparties hatremainoutside he governingcoalition.But in a presidential egime, ike thatof the United States, identifying the opposition an be trickywhen one partycontrolsthepresidencyand the othercontrolsCongress. n thesecases, legislativeoversight houldgo to theparty hatdoes not control hepresidency, venif it does hold themajorityn Congress.Afterall,the operationalommand verthe security ervices s vestedin the Executive,and this will givethe President ontrolover all sensitive information. ince our constitutional im is to createastructure hateffectively challenges he Executive's nformationalmonopoly, he watchdogroleshouldnotbe turnedover to the President'sparty,evenif it happens o have minority tatus nthelegislature.51. Underpropitious oliticalconditions, ongressionalommitteeshavesuccessfullyplayedthis role even when they were controlledby the majority.DuringWorldWarII, a committeeheadedby SenatorHarryS. Truman layeda legendary versight ole. See DONALD . RIDDLE,THE TRUMANCOMMITTEE: STUDYIN CONGRESSIONALESPONSIBILITY1964); TheodoreWilson, The Truman Committee, 1941, in 4 CONGRESS NVESTIGATES: DOCUMENTEDHISTORY,792-1974,at3115 (ArthurM. Schlesinger, r.& RogerBrunseds., 1975).But so longas this oversight unction s in the handsof the majorityparty, he incentivesmovein thewrongdirection.


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be continually reassessed as time marches on. An extraordinaryregimecannot be allowed to continuefor fouror six months,or longer,without theinformedconsentof the broaderpublic. Leadingmembersof the oppositionare in the best position to appreciate his value. We should leave it to themto play a centralgatekeepingrole.Finally, when the emergency comes to an end, the constitution shouldrequirea legislative inquest,chaired once again by an opposition memberwith an oppositionmajority,on the administration f the entireemergency.A publicreport,with formalrecommendations,would be due withina year.D. TheNeedfor ConstitutionalRevision

I have begun with the problemof legislative controlbecause it exposesthe most importantconstitutional weakness of existing practices in theUnited States and Europe.The Americanprovision for suspendinghabeascorpus is in Article I of the Constitution, dealing with congressionalpowers. This placement suggests that legislative consent is requiredfor asuspension of habeas, but the text does not say so, and Lincoln famouslysuspended the writ unilaterallyat the beginning of the Civil War.52 TheFrench Constitution s explicit, but misguided,in authorizing he Presidentto declare and maintain an emergency unilaterally.53The Germans dobetter,insistingthata state of emergencymust gain the supportof a simplemajority of the Bundestag.54Unfortunately, the Basic Law allows theemergency to continue indefinitely until a majority of both Houses ofParliamentvote to eliminate t.55With the notableexceptionof Russia,56 the new constitutionsof Centraland Eastern Europe also have rejected French-style unilateralism.57

52. See FARBER,upra note 22, at 158.53. Seesupranote 19 andaccompanyingext.54. The requirementf parliamentarypproval ppliesonly to thoseemergenciesgeneratedby external hreats.GRUNDGESETZrt. 80a. The Basic Law also envisions a heightened tateof emergencythat it calls a state of defense for cases where armed attack is imminent.A two-thirdsmajority f theBundestags requiredo move into thiscondition, ndtheconsentofthe Bundesrats alsorequired.d. art.115a(1).If it is impossible or Parliamento convene, hisdecisioncan alsobe madeby a special ointcommittee reated or interimdecisionmaking.ee id.arts. 53a, 115e(l).55. Id. art. 1151(2).This provisionappliesto the heightened stateof defense. See supranote 54. There is no similar articleregulating he eliminationof the basic state of emergencyestablishedby Article80a.56. KoNST.RFarts.87-88, 102(1993).The Presidentmust mmediatelynotifyboth Housesof Parliament-the FederationCounciland heStateDuma-upon declaring stateof emergency,id. art. 88, or martial aw, id. art. 87(2). The FederationCouncilhas jurisdiction o approvepresidential ecrees ssuedduringa stateof emergency.d.art.102(1)(c).57. For a thoughtful overview, see Venelin I. Ganev, Emergency Powers and the New EastEuropeanConstitutions, 5 AM. J. COMP. . 585 (1997). Ganev suggeststhat the RomanianPresidenthas the power to declarean emergency ndependently f Parliament, ut this claim


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1054 The Yale Law Journal [Vol. 113:1029

Reacting strongly against a half-centuryof totalitarianism,most countriesexplicitly requireparliamentary onsent,and Hungaryrequiresa two-thirdsmajoritybefore an emergency goes into effect.58While Poland does notalways require explicit legislative approval, it creates a compensatingstructure nvolving stricttime limits. On recommendation f the CouncilofMinisters, the Presidentcan declare an emergency for a period no longerthan ninety days.59 If he wants a one-time extension, he can obtain sixtymore days with the express approvalof a majorityof the Sejm (the morepowerfulchamber n Poland'sbicameralsystem).60Poland's self-conscious concern with terminationmakes a significantcontribution,but it suffers from serious technical flaws. The Sejm canonly grant a single renewal, and the emergency terminatesregardlessofreal-world conditions. Creatingsuch a gap between law and reality is aninvitation to lawlessness and should be avoided at all costs. The Polishban is undoubtedly rooted in the country's terrible experience with acontinuing state of emergency during the 1980s.61 Nevertheless, asupermajoritarian scalator provides a more realistic response to theproblem of normalization,making it increasingly difficult to sustain thestate of emergency without preventing an overwhelming majority fromrespondingeffectively to the exigencies of the moment.62

ignores the explicit requirementhat Parliament onsent within five days. See CONSTITUTIAROMANIEIrt. 93.58. A MAGYARKOZTARSASAGLKOTMANYAConstitution] art. 19(4). Ganev reports thatSlovakiarequiresa three-fifthsmajority, ee Ganev,supranote 57, at 590, but this requirementhas since been eliminatedby an amendment f February 3, 2000. See GisbertH. Flanz, TheConstitution of the Slovak Republic: Introductory and Comparative Notes, in 16 CONSTITUTIONSOFTHECOUNTRIESFTHEWORLD:THESLOVAKREPUBLIC,t v-vi (Gisbert H. Flanz ed., 2001).Underthe new rule, the Presidentproclaimsa state of emergencyafter a proposal rom thegovernment. See USTAVA SLOVENSKEJ EPUBLIKY Constitution] arts. 102(1)(m), 119(n)(Slovk.).The government onsistsof the PrimeMinister,deputyprimeministers,andministers,id. art.109(1),and s dependent n thecontinuing upport f Parliament. o it wouldbe a mistaketo saythatSlovakiahasadoptedFrench-style residential nilateralism.59. KONSTYTUCJA ZECZYPOSPOLITEJOLSKIEJ Constitution] art. 230(1). While thePresidentdoesnotrequirehe affirmative pproval f the Sejmduring he firstninety-day eriod,thisassemblycanannul heemergency y anabsolutemajority ote inthepresence f atleast halfthestatutory eputies. d. art.231.60. Id. art.230(2).61. See M.B. BISKUPSKI,HEHISTORY FPOLAND 64-68 (2000).62. Otherconstitutions ave introduced erminationlausesthatrequire requentegislativerevotes in order to continuethe emergency.Unlike SouthAfrica, these constitutionsdo notcontain supermajoritarianscalators,and thereforemake the indefinite continuationof theemergency a real possibility. See, e.g., CONSTITUCIONOLITICAELA REPUBLICA ECHILE rt.40(2), (6) (providing hata stateof siege may notexceedninetydays,maybe terminated y anabsolutemajority f the membersn eachchamber r by thePresident, ndmaybe extended orup to ninety days by Congress upon the request of the President); CONSTITUI?:AOA REPIUBLICAPORTUGUESArt. 19(5) (providing hata stateof siege or emergencymaybe in effect for notmorethan ifteendays, hough t maybe renewed ubject o thistimelimit,butif the declarationresults from war the state may last for a period specified by law), translated in 15 CONSTITUTIONSOF THE COUNTRIESOF THE WORLD:PORTUGAL 5 (Gisbert H. Flanz ed., 2002); TIJRKIYECUMHURTYETiNAYASASIConstitution] arts. 120-21 (providing that a state of emergency may


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Fromthis vantage point,recentdevelopments n SouthAfrica constitutea genuine breakthrough.As in Poland,the countrysufferedbitterlyfrom anongoing state of emergency duringthe apartheidera.63But this experienceled to some fresh thinking,which has producedthe first supermajoritarianescalator in the constitutionalworld.64 While a state of emergency can beintroducedwith the supportof a simple majorityof the NationalAssembly,it must be renewedat three-month ntervalsby asupportingvote of at least60 per cent of the membersof the Assembly. 65 To be sure, this escalatortakes a rathersimple two-step form-first fifty percent,then sixty percent,without any furtherupwardmovement. Especially in a countrylike SouthAfrica, where a single political party regularly wins large majorities, itmight prove possible to obtainvirtuallyindefiniteextensions on party-linevotes.66Only a more elaboratemultistage mechanism can reliably steerthe system toward the eventual dissolution of emergency conditions.Nevertheless, I am greatly encouraged by these provisions: It is onething for a theorist, sitting in New Haven, to commend the idea of asupermajoritarianescalator; it is quite another for a constitutionalconvention, reflecting on its bitter historical experience, to enact theprincipleinto its higherlaw.The challenge is to develop the South African idea to its fullestpotential,and to move onwardto elaborateotherstructuralmechanismsfordisciplining emergency powers.Forexample,no establisheddemocracyhasyet takena seriousstepto control the abuse of informationby the Executiveduring emergency periods.67But as we have seen, the supermajoritarian

not exceed six months, hatthe TurkishGrandNationalAssemblymayreduceor extend he stateof emergencyuponthe requestof the Councilof Ministers, hateach extensionmaynot exceedfourmonths,and hat heTurkishGrandNationalAssemblymayliftthestateof emergency).63. For the best legal account of the South African state of emergency,see STEPHENELLMANN,NA TIMEOFTROUBLE1992).64. See S. AFR.CONST. 37. The structure f the constitutional rovisions s slightlymorecomplex than the text suggests.Under Section 37, a simple majorityof the Parliament irstapprovesa state of emergency hatonly endures or twenty-onedays at most.During his time,Parliament anapprove nextensionof no morethan hreemonths hrough simplemajority. tisonly at this point that the sixty-percentescalatoroperates for all furtherextensions. Theemergencyprovisionsareanalyzed n G.E.Devenish,TheDemiseof SalusRepublicaeSupremaLex in South Africa. Emergency Rule in Terms of the 1996 Constitution, 31 COMP.& INT'LL.J.S. AFR.142(1998).Devenish'sessay,however, ails to emphasizehe innovative haracter f thesupermajoritarianscalator.For a good historyof the struggleout of which the Constitution fSouth Africa was born, see generally HASSEN EBRAHIM,THE SOUL OF A NATION:CONSTITUTION-MAKINGNSOUTHAFRICA1998).65. S. AFR.CONST.? 37(2)(b).

66. Duringthe last generalelection,the AfricanNationalCongresswon 266 of 400 seatsin Parliament-slightly less than two-thirds of the total. Election Results 1999, athttp://www.gov.za/elections/results99.htmlastvisited Oct.4, 2003).67. Theonly constitution have foundthat adverts o thisproblem s thatof Ethiopia,whichprovides hat the House of Peoples'Representatives,pondeclaration f a stateof emergency,must create a State of EmergencyInquiryBoard. ETH.CONST. rt. 93(5). The Board hasthepower:


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escalator may make it even more tempting for the Executive to concealembarrassingfacts. Both in theory and in practice, we are only at thebeginningof theprocessof discipliningthe use of emergencypowersby thecreativedevelopmentof the traditionof checks andbalances.

V. QUESTIONSFSCOPEConsider the merits of an alternativemodel, relying exclusively oncommand and control rather than checks and balances. This approachregulates the future by writing substantive standardsdirectly into theconstitution-limiting the conditions under which the emergency can be

declaredandrestricting he extraordinary owers that can be exercised.Theresulting legalisms may look impressive, but they will only functioneffectively when they are embeddedwithin a vibrantsystem of separationof powers. If a politicalpanicprevails,and thereis no institutional heck onthe President,textual formulaewill not be enough to constrainhim in thecrunch.Lawyersarecheap,and the Presidentcan always call upon the bestand brightestto stretch the legalisms to cover his case. Though opponentsmay energeticallyprotest,the resulting fog will only serve to perplex thegeneral public-who will be far more impressed by the President'sexplanationof the pressingneed for decisive action.Commandand control is a serious option only when the constitutionclearly requires he Executiveto sharedecisionmakingwith others.Perhapsthe Executive can exploit a political panic to gain a single act of legislativeconsent even when real

Ackerman - 2004 - The Emergency Constitution

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