Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism / Edition 1

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Terrorist attacks regularly trigger the enactment of repressive laws, setting in motion a vicious cycle that threatens to devastate civil liberties over the twenty-first century. In this clear-sighted book, Bruce Ackerman peers into the future and presents an intuitive, practical alternative. He proposes an “emergency constitution” that enables government to take extraordinary actions to prevent a second strike in the short run while prohibiting permanent measures that destroy our freedom over the longer run.

Ackerman’s “emergency constitution” exposes the dangers lurking behind the popular notion that we are fighting a “war” on terror. He criticizes court opinions that have adopted the war framework, showing how they uncritically accept extreme presidential claims to sweeping powers. Instead of expanding the authority of the commander in chief, the courts should encourage new forms of checks and balances that allow for decisive, but carefully controlled, presidential action during emergencies. In making his case, Ackerman explores emergency provisions in constitutions of nations ranging from France to South Africa, retaining aspects that work and adapting others. He shows that no country today is well equipped to both fend off terrorists and preserve fundamental liberties, drawing particular attention to recent British reactions to terrorist attacks. Written for thoughtful citizens throughout the world, this book is democracy's constitutional reply to political excess in the sinister era of terrorism.

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Editorial Reviews

Fareed Zakaria
Ackerman proposes an emergency constitution that would take effect after a major terrorist attack and would include some of the restrictions of the Bush administration's approach. But it would also expire periodically and could be renewed only by ever-increasing Congressional majorities. Additionally, courts would be able to review any revisions. Ackerman's solution may or may not be practical, but at least he confronts the problem intelligently, and he is surely correct to say that it's not a good idea to respond to particular crises with ad hoc changes to our laws.
—The New York Times
Foreign Affairs
Terrorist attacks on democracies have awful but predictable effects: they trigger public panic and lead politicians to pass restrictive laws with the promise of greater security. In this brilliant study, a Yale legal scholar outlines proposals aimed to prevent the abuses of presidential power that could all too easily result from a future attack. Ackerman thinks that the United States panicked in the aftermath of 9/11 and rushed the Patriot Act into law. In the event of a large-scale nuclear or biological terrorist attack, waves of repressive legislation would follow — a "pathological political cycle" that could prove devastating to civil liberties. In the age of terrorism, Ackerman argues, American democracy must, in effect, tie itself to the mast by creating in advance delimited emergency powers with requirements for repeated congressional authorization and specific time limits. This "emergency constitution" would give the government short-term powers to prevent a second strike but guard against the panic-driven abolition of cherished liberties. Building on constitutional principles of checks and balances, the book details institutions and principles that would inform such an emergency act. Such future contingencies are grim, but the continuing relevance of the foundational principles Ackerman uses to guide his analysis is heartening.
Eugene R. Fidell
"Bruce Ackerman's book is a tour de force. He has brilliantly combined a subtle treatment of the legal issues with a politically astute—and courageous—plan for preserving our constitutional system in the event of a future cataclysm. The time to think about these issues is now, and this book, which should be required reading for our national leaders, is the place to begin."—Eugene R. Fidell, President, National Institute of Military Justice
George P. Fletcher
“Ackerman teaches us, with characteristic elegance, that deep legal thought matters to the future of democratic government. We all know that we overreact to aggressive attacks, and Ackerman explains how constitutional structures can be the insurance policy we need to level our reactions before and after victims suffer.”—George P. Fletcher, Cardozo Professor of Jurisprudence, Columbia University
John Ferejohn
“A deep and thorough exploration of how to implement a genuine emergency 'constitution' within the framework of the Constitution. This is a formidable piece of work, interesting and provocative, and it will be an important and influential book."—John Ferejohn, Caroline S.G. Munro Professor of Political Science, Stanford University
Philip Heymann
“Bruce Ackerman has addressed what may be the biggest issue facing us in reconciling democracy, human rights, and national security in an age of terrorism: how to adjust to the next big attack. His focus on the politics of grave emergencies is essential reading; his recommendations are creative and surprising.”—Philip Heymann, James Barr Ames Professor of Law, Harvard University and former U.S. Deputy Attorney General
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Product Details

  • ISBN-13: 9780300122664
  • Publisher: Yale University Press
  • Publication date: 3/14/2007
  • Edition description: Anniversary Edition
  • Edition number: 1
  • Pages: 238
  • Product dimensions: 6.14 (w) x 9.21 (h) x 0.54 (d)

Meet the Author

Bruce Ackerman is Sterling Professor of Law and Political Science, Yale University, and the author or coauthor of more than fifteen books on political philosophy, constitutional law, and public policy, including Social Justice in the Liberal State, The Stakeholder Society, and Deliberation Day, all published by Yale University Press.

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Read an Excerpt


By Bruce Ackerman

Yale University Press

Copyright © 2006 Yale University
All right reserved.

ISBN: 978-0-300-11289-4

Chapter One


"War on terror" is, on its face, a preposterous expression. Terrorism is simply the name of a technique: intentional attacks on innocent civilians. But war isn't merely a technical matter: it is a life-and-death struggle against a particular enemy. We made war against Nazi Germany, not against the Blitzkrieg.

Once we allow ourselves to declare war on a technique, we open up a dangerous rhetorical path. During times of panic, indiscriminate war talk will encourage a shocked public to lash out at amorphous threats without the need to define them clearly. Who knows who will be swept into the net?

There is a second big flaw. By calling it a war, we frame our problem as if it involved a struggle with a massively armed major power, capable of threatening our very existence as a free country. But terrorism isn't a product of overweening state power. It is a product of the free market in a world of high technology.

There have always been millions of haters in the world, but their destructive ambitions have been checked by the state's monopoly over truly overwhelming force. Terrorists might assassinate anation's leader or blow up a building, but they could not devastate a great city or poison an entire region. These are things that only states could do. With the proliferation of destructive technologies, the state is losing this monopoly.

Here is where the logic of the free market enters. Once a technology has escaped a state monopoly, it's almost impossible for government to suppress the lucrative trade completely. Think of drugs and guns. Even the most puritanical regimes learn to live with vice on the fringe. But when a fringe group obtains a technology of mass destruction, it won't stay on the fringe for long.

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

Preventive measures will sometimes fail. Once the state no longer monopolizes a technology of destruction, the laws of supply and demand will inexorably put weapons in the hands of the richest and best-organized terrorists in the marketplace, and government will be playing catch-up. The only question is how often the security services will drop the ball: once out of ten threats, once out of a hundred, once out of a thousand?

These basic points are obscured by the fog of war talk. Real wars don't come out of nowhere because the government has dropped the ball. They arise after years of highly visible tension between sovereign states, and after the failure of countless efforts at diplomacy. They occur only after the public has reluctantly recognized that the awesome powers of warmaking might be justified. Even sneak attacks, as at Pearl Harbor, are preceded by years of escalating tension that put the public on notice that a powerful nation-state, with an aggressive military force, threatens overwhelming harm to all we love.

But when terrorists strike, all we really know is that they managed to slip through a crack that the government failed to close. Given the free market in destructive technologies, we don't know whether we face a tiny group of fanatics, with a couple of million dollars, which happened to get lucky, or a more serious organization with real staying power. By lapsing into war talk we trigger a set of associations that are often false and frequently encourage the worst of panic reactions. We head down a misleading path suggesting that not only are "the terrorists" numerous and well organized, but they are somehow capable of wielding the earth-shattering forces mobilized by major nation-states. This is very unlikely: Osama in his cave doesn't remotely represent the totalizing threat of Hitler in his Chancellery. And yet in the aftermath of a sneak attack, our expansive war talk invites us to suppose that we should confide to government the awesome powers that might well be appropriate when fighting a Third World War.

The emergency constitution is predicated on a more accurate description of our situation: We are reeling in the wake of surprise attack, and we just don't know whether the terrorists were just plain lucky, whether they have the capacity to organize a rapid second strike, whether they are in it for the long haul. So let's do what's necessary in the short term, and buy some time to figure out what's appropriate in the longer run.

The short-term problem is the second strike. Though the government may be deeply embarrassed by the initial attack, it's the only government we have. The terrorist strike will predictably generate bureaucratic chaos, but we should grant the security services extraordinary powers needed to preempt the second strike that may (or may not) be coming. This is the real danger at the moment, and we should focus all our collective energies on preventing it from happening, rather than launching a never-ending war on terrorism.

I am getting ahead of myself. Before exploring the ways a state of emergency might help us restore constitutional sanity, it's best to trace the impact of the prevailing war talk on our existing practices. The "war on terror" not only invites an aroused public to lash out at an amorphous enemy. It also makes it easier for the president to fight real wars against real countries. And it encourages the public to grant powers that threaten grave and permanent damage to our civil liberties.

These disturbing tendencies are already in evidence in American constitutional development. Unless we make a determined effort to call a halt, the momentum will only accelerate over time.

The Two-Front War

The Constitution grants Congress the power to "declare war," creating an opening for the Supreme Court to tell the president what a "war" is and when the consent of Congress is required. But the justices have repeatedly declined this invitation. They refused to hear lawsuits challenging the Tonkin Gulf Resolution during the Vietnam era, and they won't be waking from their slumber any time soon.

This means that a president pondering an old-fashioned war against a sovereign state has to prepare a political campaign on two domestic fronts as well. It isn't enough for him to convince ordinary Americans that it's right to fight one or another rogue state. He must also battle Congress for the right to make the final decision on whether to go to war. If it proves politically impossible for him to go to war without gaining the consent of Congress, he must try to squeeze the House and Senate into a political corner, giving them no choice but to rubber-stamp his decision. Transforming the problem of terrorism into a "war" helps the president on both fronts. Under the traditional understanding, each war against a sovereign state has to be justified on its own merits. The war against Afghanistan is distinct from the one against Iraq, and so forth. But once the public is convinced that a larger "war on terrorism" is going on, these old-fashioned wars can be repackaged as mere battles-as in President Bush's famous description of Iraq as "the central front" on the war on terrorism. Rhetorical repackaging also makes it easier for the president to win on his second front, enabling him to take unilateral action without the consent of Congress. Everybody knows that the president, as commander in chief, has the constitutional authority to initiate "battles." It is only when he proposes an entirely new "war" that the consent of Congress comes into play. Even here, presidents often have committed forces without clear congressional consent-but especially in major initiatives, their authority to do so will encounter fierce, and often successful, political resistance.

As president and Congress square off against each other, the public understanding of the nature of war becomes an important factor in determining the outcome. Once the president convinces the public that an invasion of a "rogue state" is merely a "battle" in the "war on terrorism," he is well on the way to winning his battle against Congress over final decision-making authority. To be sure, his opponents will predictably insist that the Constitution expressly grants Congress the power "to declare war." But the president can easily dismiss this point if the public is convinced that we are already fighting a war (on terror) and that the president is simply opening a new battlefront (against another sovereign state). Once the larger point is conceded, the president's powers as commander in chief will predictably carry the day in the court of public opinion.

And he will have sufficient support in the academic community to make his case seem legally respectable. Consider this particularly chilling statement from Professor John Yoo of the University of California Law School: "The world after September 11, 2001, ... is very different.... It is no longer clear that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. It is no longer clear that the default state for American national security is peace." And it will never be clear until the public and the legal community repudiate the mindless war-talk which swirls around us.

From Rhetoric to Reality

A contrast between the first and second wars in Iraq suggests the corrosive influence of the "war on terror." These two military initiatives were the largest in recent decades. This did not stop either Bush I or Bush II from insisting on their inherent power as commanders in chief to commit the troops without the consent of Congress. Despite their unilateralist pretensions, both presidents were obliged by political realities to go to Congress, but under revealingly different scenarios.

Before making his war in the Persian Gulf, Bush I first gained the consent of the United Nations Security Council and only then turned to Congress for authorization. This sequence established two major principles for the "new world order" then emerging from the Cold War.

The first principle was the double veto: the president would not launch a major war without the consent of both the U.N. Security Council and the U.S. Congress. Under the second principle, Congress would have the final say: only after the Security Council established that war was consistent with the U.N. Charter would Congress decide whether it was in the best interests of the United States.

The second time around, with the nation now embarked on a war against terror, Bush II dealt himself a stronger hand. He reversed his father's sequence and went to Congress first. A grant of plenary warmaking power, he explained, would give him a crucial bargaining chip in gaining the support of the Security Council for the Iraqi invasion: "If you want to keep the peace, you've got to have the authorization to use force," as he put it.

Congress picked up where the president left off. A war resolution typically raises a profound but straightforward question: are you for it or against it? But suddenly lawmakers could vote for war and say they were for peace-they were merely providing the president with a much-needed bargaining chip. George Orwell was the brooding presence in the hall: the vote had been transformed from a solemn act of accountability into a buck-passing operation.

It wasn't tough to see through this presidential power grab-it had all the delicacy of a sucker punch. But it floored Congress. Critics argued for a carefully limited Congressional resolution that required President Bush to return to Congress if he failed to convince the Security Council to authorize the use of force. They campaigned for a vote in both houses to force Bush II to follow the path of Bush I. They got their vote but were overwhelmed by the public's support of "the war against terror," which blurred the distinction between the war in Iraq and the terrorist attack of September 11. The critics' carefully limited war resolution went down by substantial margins in both Houses, and the president gained his warmaking authority, with a gesture toward a peaceful resolution through the United Nations.

With Congress out of the picture in the run-up to the invasion, public opinion polling took on a weight it should never assume. When the president finally threatened Iraq with war unless Saddam Hussein quit the country in forty-eight hours, the pollsters rushed to the phones to take the public pulse. By the next morning, they breathlessly reported that two-thirds of their 510 respondents supported the president.

With the momentum provided by his leadership in the war on terror, Bush II had managed to push the warmaking system one large step toward presidential unilateralism. He had displaced Congress from its final say over matters of war and peace, substituting the fig leaf of pollster democracy.

I am not interested in refighting the war in Iraq. My point is diagnostic. We should look upon Bush's success as an augury for the future. Suppose that the country is once again reeling from a devastating terrorist attack. And suppose that the sitting president is once again moving toward war against an enemy state that has no obvious relation to the terrorists who actually were responsible.

And yet, suppose further, he insists on lumping the two together as part of a vast and boundaryless "war on terror." He further insists that, as commander in chief, he has the constitutional authority to open up a new battlefront against the "rogue state" he is targeting for destruction. Who will stop him this time? Congress? If it was such a pushover the last time around, is it really likely to insist on making a sharp distinction between the terrorist attack on the one hand and the rogue state on the other?

Many factors will determine the answer, but certainly the "war on terror" doesn't invite Congress and the public to make the necessary discriminations.

It is a fair question whether an emergency constitution can encourage greater discernment, and I will return to this issue when we move from diagnosis to prescription. For now, it is enough to emphasize a first big problem with the now-dominant public rhetoric: The "war on terror" will make it easier for future presidents to react to the panic of a terrorist attack by launching an old-fashioned war against an unrelated rogue state, without submitting themselves to the narrowly focused congressional inquiry rightly demanded of such fateful decisions.


The law is a blunt instrument. It hacks the complexities of life into a few legal boxes, and obliterates the nuances. Thinking "inside the box" is especially dangerous where "war" is concerned. For example, the Spanish-American War was a war, and so was the Second World War, but the Spanish-American War did not involve a life-and-death struggle for political survival. This should make a big difference so far as civil liberties are concerned. Though many sacrifices were justified in the war against the Axis powers, it would have been absurd to make comparable demands in the war against Spain, an imperial power in terminal decline. Yet once lawyers get trapped inside the box, such absurdities can readily seem to be the inexorable product of sound legal reasoning. War is war, and that is that: it is easy for lawyers to extend precedents upholding presidential power in big wars to cases involving minor skirmishes.

Terrorism raises problems that are distinct from both the Second World War and the Spanish-American. But once we call it a war on terror, we are in grave danger of treating these attacks as if they raised the constitutional stakes as did our life-and-death-struggle against Germany and Japan. As we shall see, the Supreme Court is already succumbing. In its initial foray into the subject, the Court has invoked repressive precedents from the gravest wars of the past as if they were applicable to our present predicament.


Excerpted from BEFORE THE NEXT ATTACK by Bruce Ackerman Copyright © 2006 by Yale University. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Introduction: The Emergency Constitution     1
This Is Not a War     13
This Is Not a Crime     39
This Is an Emergency     58
The Political Constitution     77
The Role of Judges     101
American Exceptionalism     122
If Washington Blows Up?     142
The Morning After     169
Notes     175
Acknowledgments     209
Index     213
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