The Perils of Judicial Restraint
If the Supreme Court won't intervene on "enemy combatant" cases, Congress must.
First and foremost, the emergency constitution should impose strict limits on unilateral presidential power. Presidents should not be authorized to declare an emergency on their own authority, except for a week or two while Congress is considering the matter. Emergency powers should then lapse unless a majority of both Houses vote to continue them—but even this vote would be 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 more months, 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. Congress must make it clear that the unconscionable treatment of Padilla last time does not create a precedent for massive and endless detentions the next time around. 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. Even during the period of preventive detention, judges should have the power to intervene to protect against torture and other abuses.
In offering my proposals, I'm not building from the ground up. I'm seeking to develop ideas and practices that are already in common use. As the Katrina disaster emphasizes, presidents and governors regularly respond to natural disasters by declaring temporary states of emergency and—though this is less familiar—American presidents regularly declare emergencies in response to foreign crises and terrorist threats. Congress' aim should be to develop these well-established practices into a credible bulwark against the presidentialist war dynamic that threatens to sweep away our longstanding system of checks and balances. In the aftermath of catastrophe, we shouldn't turn on the television to see the president pledging himself to a further escalation of the "war on terror," one that would sweep thousands into military camps. If that terrible day comes, they should 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 may be lucky: Perhaps there will be no repetition of Sept. 11. Or when the next strike occurs, perhaps the sitting president will be a heroic defender of civil liberties and refuse to succumb to the political dynamics of fear and repression. But things might turn out worse the next time. Perhaps the sitting president will combine the simplistic beliefs of George W. Bush, the rhetorical skills of Ronald Reagan, the political wiles of Lyndon Johnson, and the sheer ruthlessness of Richard Nixon into a single toxic bundle.
No constitutional design can guarantee against the very worst case, and no constitutional design is needed for the best of all possible worlds. But there is plenty of room in the middle, and this is where human beings generally live out their lives. This is where the emergency constitution can make a big difference.
We are in a race against time. It takes time to confront the grim constitutional future that lies ahead; and yet more time to separate good proposals from bad ones; and yet more time to engage in a broad-based public discussion; and more time still for farsighted politicians—if there are any—to enact an emergency 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.
Only one thing is clear: After Padilla, it would be folly to rely on the Supreme Court to save us from the presidentialist war dynamic. This court has already been weakened by the recent appointments; while Justice Sandra Day O'Connor famously warned against giving the president a "blank check" in the war on terror, neither Chief Justice John Roberts nor Justice Samuel Alito voted to grant jurisdiction to impose sharp limits on presidential power at this propitious moment. And the court's resolve may be weakened further if more vacancies occur before 2009.
There is no disguising the seriousness of our current situation, yet we have no real choice but to confront the dangers ahead and begin a sustained conversation that may lead to serious action by the end of the decade. Since the court has declined to begin that conversation, Congress must take the lead.
Bruce Ackerman is a professor of law and political science at Yale and the author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.