The National Catholic Review
Kimberly E. O'Leary
In his new book, Before the Next Attack, Yale law professor Bruce Ackerman takes a complex constitutional proposal directly to the American public, and he does a terrific job explaining the what and why of his proposals, as well as the history of emergency power in the United States. I am sure my legal background (which is not in constitutional law) helped me understand more of the nuance in his suggestions than might be true for the average citizen, but his proposals are important to all of us, and he has taken pains to make his ideas understandable to an educated citizenry.

Professor Ackerman argues in favor of broad legislation that he refers to as an Emergency Constitution (even though he does not advocate a constitutional amendment). The book is well written, clear and backed up with tight analysis, which indicates he has considered virtually every argument that might be made against his proposals. Nonetheless, I was not quite persuaded that emergency suspension of civil liberties protections would actually lead to the safety and security Ackerman suggests. And even Ackerman would seem to agree that his proposal could be dangerous unless we are pretty sure such a result would obtain.

Before the Next Attack begins with an examination of two sides of an ongoing debate about the best methods for protecting the country in the aftermath of massive terrorist attacks. Ackerman begins with an analysis of antiterrorism efforts as war versus crime. He makes a convincing case that the distinction makes a huge difference in what the law allows the executive branch of government to do. For example, can the president detain a citizen with less than probable cause that a crime has been committed, hold him for an indefinite period of time and possibly never try him? The answer probably depends on whether we are fighting a war or fighting a crime. Can he do the same to a noncitizen? Can he examine personal records without a warrant? Can he enact a curfew against certain residents but not others? These questions should sound familiar, because some of them are being debated in Congress, in the press and by ordinary people today.

Ackerman concludes that in the aftermath of a massive terrorist attack, the state has an interest in taking extraordinary measures to prevent a second attack, and citizens have an interest in assurances that security measures are being taken. He rejects both the war and crime paradigms, instead insisting that a new paradigm must emerge to confront a new threat.

His solution is to give the president and Congress the power to declare an emergency and temporarily suspend some civil liberties standards. Such power could be declared solely by the presidentbut for no longer than two weeks, unless Congress ratifies the emergency powers by a majority. In that event, the emergency powers would be available for some limited amount of timesomewhere from 60 to 90 daysand could be extended only by increasing supermajorities in Congress (that is, 60 percent would have to approve the first 30-day extension, 70 percent the second 30-day extension, and so on until presumably 100 percent of Congress approves further extensions of the emergency powers).

While he wisely leaves many of the details open-ended, the author does describe some thought-provoking scenarios to illustrate his point. For example, he describes mass detentions of suspicious persons during these emergencies. Presuming that most of the detainees would be innocent of wrongdoing, Ackerman recommends automatic payments of $500 per day for innocents who are detained. If probable-cause evidence is obtained during the emergency period against those guilty of crimes, those people would be processed under regular criminal statutes and not reimbursed.

Several questions worry me about Ackerman’s proposal. He suggests, and current events demonstrate, that the president today has assumed many powers that may violate laws, even emergency anti-terrorism laws. If Congress passes laws that suspend civil liberties, what will keep the president from overreaching even further? Ackerman puts faith in judicial oversight, but his first chapter demonstrates how easy it is for courts to defer to overreaching after a terrorist attack. He puts faith in Congress, but much of today’s Congressional debate equates criticism of presidential strategies with cowardice hardly a lofty argument (although he does persuasively make the case that the current president lacks a supermajority today).

Perhaps most important, Ackerman puts faith in law enforcement to target likely suspects objectively, based on facts, not fear. In this faith, I believe he minimizes ethnic and racial hysteria, which is unfortunately part of the fabric of every emergency this country has ever faced. Ackerman’s primary justification for emergency powers relates to his perception that suspension of civil liberties will lessen the likelihood of a second attack. He presents no facts, however, to support that assertion. After the bombings by Timothy McVeigh in Oklahoma, many believed Muslim extremists were responsible; imagine the damage that would have occurred had the president rounded up Muslim citizens, only to learn that in fact, a home-grown militia member was responsible. Monetary compensation would not have begun to repair the resultant societal damage, and those (Muslim) communities could have become breeding grounds for real terrorists.

On the other hand, Ackerman’s proposal makes a strong pragmatic argument for the lesser of two evils. A temporary suspension of civil liberties with a supermajorities’ protection to limit its duration is better than the blatant and never-ending power plays we have witnessed in recent years. Ackerman himself rejects such reasoning, however, claiming a more principled foundation.

The bottom line is that we have much to lose by suspending civil liberties standards, even for a short time. Ackerman eloquently explains the importance of our tradition of civil liberties as a protector of our core values and way of life. One could argue that protection of civil liberties is the essence of all we are trying to protect from terrorism. How quickly suspension of civil liberties could turn into a victory for the terrorists who, unable to destroy our government, could succeed in destroying our most precious values.

There is much more in Ackerman’s short bookincluding proposals to establish better lines of succession in all three branches of government, should Washington, D.C., suffer a debilitating attack. While I was not entirely persuaded by the author’s arguments, Before the Next Attack offers much to ponder. This is a book I highly recommend for everyone to read and debate.

Kimberly E. O'Leary is a professor of law at the Thomas M. Cooley Law School in Lansing, Mich.