An ‘Emergency Constitution’?

To the Editors:

Professor Cole’s review [“In Case of Emergency,” NYR, July 13,] touches on many themes developed in our extended debate in the Yale Law Journal, but he introduces one large new issue here. Before the Next Attack argues for a framework statute that would grant the president emergency powers after major terrorist attacks, but only if Congress gives its ongoing consent. Every two months, the president would be required to return for congressional reauthorization, under terms that make approval increasingly difficult: although a simple majority of both Houses would suffice to initiate emergency powers, a supermajority of 60 percent would be required the next time around; 70 percent, the next time; and 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.

Professor Cole says that my promise of early termination is chimerical because nothing would prevent Congress from repealing the framework statute during the emergency by a simple majority vote. But he ignores my argument to the contrary. The Constitution limits Congress’s power to authorize emergency detentions, without the standard protections of the Bill of Rights, to cases of “rebellion” or “invasion.” Although a major terrorist assault might well qualify initially, the Supreme Court has insisted that no single attack can amount to an ongoing “invasion.” Indeed, it refused to allow martial law to continue in Hawaii a mere eight months after Pearl Harbor, even though we were still fighting the Japanese elsewhere.

My supermajoritarian escalator builds on this constitutional foundation. The framework reflects a congressional recognition that that Constitution does not allow the unlimited use of emergency powers in response to a single attack. It provides a calibrated mechanism that encourages congressional termination, while leaving the ultimate decision to our elected politicians. If a simple majority of Congress tried to repeal the escalator in a moment of panic, this would alert the Supreme Court of the imperative need to order the immediate discharge of all detainees whom the government fails to prosecute under normal criminal procedures, as required by its earlier precedents.

As this scenario suggests, my proposed “emergency constitution” does not, as Professor Cole says, reflect a “distrust of courts that is fashionable in the legal academy.” To the contrary, it proposes a new partnership between Congress and the courts to rein in the excesses of presidential power.

Bruce Ackerman

Sterling Professor of Law

and Political Science

Yale University

New Haven, Connecticut

David Cole replies:

Professor Ackerman’s letter unwittingly underscores the problem presented by his book—what he offers as a grand solution to a global constitutional crisis turns out to be a rather narrow and unrealistic proposal for a preventive detention statute. His letter takes issue with my contention that one weakness in this approach is that Congress could always amend the statute in a time of crisis, and therefore it would not truly restrain the legislature in a crisis. Ackerman replies that the statute he proposes would be a partial suspension of the writ of habeas corpus (it would deny persons locked up after terrorist attacks any recourse to a judge to test the grounds for their detention), and since the Constitution limits Congress’s power to suspend the writ to periods when suspension is necessary to respond to a “rebellion” or “invasion,” the congressional amendment I envision in a subsequent crisis might trigger a judicial ruling that the amended detention statute violates the Constitution’s Suspension Clause. That threat, Ackerman suggests, would restrain Congress from amending the law, even where a majority felt that the emergency continued but were thwarted by a 21 percent minority vote of one House of Congress.

There are three problems with this argument. First, if the statute Ackerman proposes is indeed a “suspension” of the writ of habeas corpus, then its constitutionality vis-à-vis the Suspension Clause turns simply on whether we are in a time of “rebellion” or “invasion,” a fact that is entirely unrelated to whether the statute contains the procedural innovation Ackerman calls a “supermajoritarian escalator.” Accordingly, a subsequent repeal of the escalator would not alter the law’s constitutionality.

Second, and more importantly, Ackerman never explains why suspension of the writ—that is, removal of judicial review of the legality of the detention—is a good idea in the first place. American law contains several preventive detention statutes already—for detention of persons awaiting criminal trial or deportation, or for those whose mental diseases render them dangerous to others. None of these laws is considered to suspend the writ, because they permit those detained to seek judicial review of the legality of their detention. Ackerman never adequately explains why he advocates dispensing with this protection, except for a weakly defended distrust of the very courts his letter now claims he would rely upon.

Finally, and most fundamentally, Ackerman’s resort to the Suspension Clause to defend his emergency statute only emphasizes how limited his prescription truly is. What is most unsatisfying about Ackerman’s book is the lack of a clear and convincing connection between what it promises and what it delivers. Ackerman claims to have identified a deep defect in the world’s constitutions regarding emergency powers, but his solution is nothing more than a statute giving the executive temporary authority to lock up suspects without any judicially checked basis for suspicion. If the five years since September 11 have taught us anything, it is that the problem is much more complex, and that this particular solution would only exacerbate the problem, by encouraging the kinds of abusive roundups we saw in the immediate aftermath of that day’s terrorist attacks. As the Bush administration invokes Britain’s averted Heathrow airplane bombings as justification for expanded detention powers (and a convenient campaign issue) here, the dangers of Professor Ackerman’s “solution” have never been clearer.