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A Skeptical View of Deference to the Executive in Times of Crisis

Published online by Cambridge University Press:  19 March 2012

Fionnuala Ni Aoláin  and
Oren Gross
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Abstract

In times of crisis there is an unmistakable tendency to augment and extend the powers of the executive branch. This centralizing tendency has been exhibited in numerous legal systems and through varied kinds of crisis. More recently, similar trends have been much in evidence in the United States, and a corresponding academic discourse defending and extolling the virtues of such augmentation has emerged. This Article is skeptical of the virtues of such advice and its ultimate policy benefits. We assert that there are substantial dangers to the centralization of crisis powers in times of emergency. These tendencies hold particular perils for the democratic state. Moreover, the rush to create or cement decision and review making hierarchies can be antithetical to the project of utilizing the strengths of rule of law based societies to respond to the challenges posed by violent actors. The purported benefits of excluding, or at best sidelining, the courts from review of executive actions of crisis regulation are particularly ill-conceived. Such proposals consistently fail to engage with the importance of across-the-board institutional legal engagement with state action in times of crisis. The success and value of such engagement cannot be measured from the crisis vantage point. Rather it requires an assessment beyond the moment of exception, factoring in a return to normalcy and the impact on law and legal institutions in the post-crisis phase. We assert that scholars advocating for exclusive executive supremacy in times of crisis fail to measure the harms that may be caused by inept or illegal state action, not only as experienced by individual victims but to the broader project of discouraging and dissuading the resort to group based violence.

Type
A Symposium on Constitutional Rights and International Human Rights honoring Professor David Kretzmer
Information
Israel Law Review , Volume 41 , Issue 3 , Winter 2008 , pp. 545 - 561
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2008

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References

1 For a comparative survey and assessment of structural and institutional mechanisms to response to crisis see Gross, Oren & Ni Aoláin, Fionnuala, Law In Times of Crisis Emergency Powers in Theoretical and Comparative Perspective 35–66 (2006)CrossRefGoogle Scholar.

2 Most notably, but not uniquely in this vein, is the book by Posner and Vermeule with which we disagree substantively. See Posner, Eric A. & Vermeule, Adrian, Terror in the Balance Security, Liberty, and the Courts (2007)Google Scholar. Some of the ideas developed in this Article are found in the Book Review: Ni Aoláin, Fionnuala, Terror Conflated—A Review of Terror in the Balance, Const. Comment (forthcoming 2009)Google Scholar.

3 See, e.g., Chesney, Robert & Goldsmith, Jack, Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stan. L. Rev. 1079 (2008)Google Scholar (concerning prolonged legalized detention); Posner, Richard A., Not A Suicide Pact: The Constitution in a Time of National Emergency (2006)Google Scholar (articulating inter alia legal shelter for state officials who utilise methods of torture).

4 In this vein a recent report complied by former prosecutors in the United States painstakingly documenting the adequacy of the federal system of criminal justice to handle the detention and trial of persons accused of terrorist crimes makes worthwhile reading. See Zabel, Richard B. & Benjamin, James J. Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts (May 2008)Google Scholar, available at http://www.humanrightsfirst.info/pdf/080521-USLS-pursuit-justice.pdf.

5 See Posner & Vermeule, supra note 2. There has been very limited academic engagement with this work. Notable exceptions include Crocker, Thomas P., Book Review: Torture, with Apologies Terror in the Balance: Security, Liberty, and the Courts. By Eric A. Posner and Adrian Vermeule, 86 Tex. L. Rev. 569 (2008)Google Scholar and Ristroph, Alice, Professors Strangelove, 11 Green Bag 2d 245, 253 (2008)Google Scholar.

6 Posner & Vermeule, supra note 2, at 3.

7 See, e.g., Delahunty, Robert J. & Yoo, John, Executive Power v. International Law, 30 Harv. J. L & Pub. Pol'y 73 (2007)Google Scholar (arguing that in the exercise of executive power the President of the United States is not formally constrained by international law) and McGinnis, John O' & Somin, Ilya, Should International Law be Part Of Our Law?, 59 Stan. L. Rev 1175 (2006)Google Scholar.

8 Posner and Vermule's book for example, despite making claims to broader multi-state application has a strikingly limited American reach, identifying six periods of emergency during American history, from which they set out two alternative assessment points. One assessment is a history of constitutional failure, marked by political panic, irrational policy-making and an exaggerated emphasis on security—this they situate as the civil libertarian view. Posner & Vermeule, supra note 2, at 4.

9 The effects of this pressure are seen in the operation of the United Nations Counter-Terrorism Committee. U.S. anti-terrorism policy imperatives manifest in its schematic creation, its reporting requirements and the obligation placed on states to legislate in particular ways with respect to terrorism. See Ni Aoláin, Fionnuala, Assessing the Human Rights Dimensions of International Legal Responses to September 11th, Isr. Y.B. Hum. Rts. (2003)Google Scholar.

10 Posner & Vermule, supra note 2, at 4.

11 They also make a number of empirical claims throughout the book many of which are unsubstantiated or under-supported.

12 Posner & Vermule, supra note 2, at 5.

13 Id.

14 See, e.g., Yoo, John, Bradley, Curtis A., & Goldsmith, Jack, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047 (2005)Google Scholar; see also Congressional testimony of Attorney-General elect Mukasey concerning the reach of executive powers Hulse, Carl, Mukasey Wins Vote in Senate Despite Doubts, N.Y. Times, Nov. 9, 2007Google Scholar, available at http://www.nytimes.com/2007/11/09/washington/09mukasey.html.

15 That theory is generally understood as a doctrine of constitutional interpretation that holds it unconstitutional for Congress to create “independent” agencies, authorities or other entities that exercise executive or quasi-judicial powers. It stems from an interpretation of the separation of powers to execute laws in the executive branch. See Yoo, Christopher, Calabresi, Steven, & Nee, Laurence, The Unitary Executive During the Third-Half Century 1889-1945, 80 Notre Dame L. Rev. 1 (2004)Google Scholar (for an historical account of the theory and its associated practice).

16 We nonetheless acknowledge that Courts present certain weaknesses and flaws in their response to the exercise of emergency powers, and that their robustness is always a relative matter. We concur with the views of David A. Martin commending the tradition of what Alexander Bickel described as judicial “passive virtues” in the context of judicial review in times of emergency. See Martin, David A., Judicial Review and the Militaty Commissions Act: On Striking the Right Balance, 101 Am. J. Int'l L. 344, 351 (2007)Google Scholar. Unlike Martin we would assert that there may be times in which deferential standards should be avoided for more robust interface when fundamental rights are in play.

17 Posner & Vermule, supra note 2, at 59-86.

18 Sunstein, Cass, National Security, Liberty and the D.C. Circuit, 73 Geo. Wash. L. Rev 693 (2005)Google Scholar; Ackerman, Bruce, The Emergency Constitution, 113 Yale L.J. 1029 (2004)CrossRefGoogle Scholar.

19 See Gross & Ni Aoláin, supra note 1; The Security of Freedom September 11th, Consequences for Canada (Daniels, et al. eds., 2003)Google Scholar; Oorá, Jaime, Human Rights in States of Emergency in International Law (1992)Google Scholar; Rossiter, Clinton L., Constitutional Dictatorship Crisis Government in Modern Democracies (1948)Google Scholar.

20 See Gross & Ni Aoláin, supra note 1, at 176-80.

21 Patriot Debates Experts Debate the USA Patriot Act (Baker, Stewart A. & Kavanagh, John eds., 2005)Google Scholar.

22 Uniting and Strengthening American by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act, Pub. L. No. 107-56, 115 Stat. 272 (2001). Notably by virtue of a sunset provision incorporated into the act, several of the Act's provisions were scheduled to terminate on December 31, 2005. On July 21, 2005 the United States House of Representatives voted by a wide margin to extend indefinitely and to make permanent practically all of the provisions that had been subject to the sunset clause.

23 Posner & Vermeule, supra note 2, at 12.

24 Crocker, supra note 5, at 569.

25 Posner & Vermeule, supra note 2, at 4, and argued further in the context of their theory on democratic failure at 87-129. See Ristroph, supra note 5, at 248 (“Posner and Vermeule explicitly refuse to provide empirical proof that the executive branch actually chooses wise security policies, and they assert rather than demonstrate that the executive branch has superior expertise”).

26 Id.

27 Id. at 39.

28 Crocker, supra note 5, at 569.

29 See Gross & Ni Aoláin, supra note 1, at 171-243.

30 Posner & Vermeule, supra note 2, at 4.

31 Posner & Vermeule do not credit any long term effects from the use of emergency powers supra note 2, at 131-56 (discussing the ratchet effect). Some more recent work by law and economics scholars seeks to engage with the empirical questions. See, e.g., Viscusi, W. Kip & Zeckhauser, Richard J., Sacrificing Civil Liberties to Reduce Terrorism Risks (Harvard Law and Economics Discussion Paper No. 401, 2003)CrossRefGoogle Scholar, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=380620, (examining people's willingness to sacrifice civil liberties in an effort to reduce terrorism risks, the sample group being Harvard Law Students surveyed in the Spring of 2002. Notably the authors conclude that “attempts to estimate terrorism risks will fall prey to some of the more salient biases and anomalies that have been identified in the risk and uncertainty literature.”)

32 Lustick, Ian, Trapped in the War on Terror (2006)CrossRefGoogle Scholar.

33 Cole, David & Lobel, Jules, Less Safe Less Free Why America is Loosing the War On Terror (2007)Google Scholar.

34 Id. at 130. In examining the State Department's own empirical assessments of threat and terrorism they point out that in 2005 the State Department eliminated numbers from its annual terrorism report altogether. However, other sources such as the National Counterterrorism Center (NCTC) demonstrate that there has been a dramatic increase in the numbers of deaths, injuries, and kidnappings that are terrorism related. They also report on the 2006 Foreign Policy survey of foreign policy experts, who uniformly across political grouping agree that the “war on terror” is not being won. Id.

35 Posner & Vermeule address in chapter 4 the claim that offensive measures against terrorism are counterproductive in the long run. Their rather formulaic response is that the danger of not responding against terrorism creates “an impression of weakness, which can itself increase terrorist recruitment and delegitimate the deterring government” Their concern seems to rest on the supposed dangers of authoritarian rather than on the link between repressive law and greater terrorist threat. Posner & Vermeule, supra note 2, at 132. The argument has a straw man quality, in that it is rarely if ever a choice of “do nothing” and “do too much.” Rather the question for most civil libertarians is a question of balance in the choice of legal means deployed to respond to security threats.

36 There are some exceptions, see Campbell, Colm & Connolly, Ita, Making War on Terror? Global Lessons from Northern Ireland, 69 Mod. L. Rev. 935–957 (2006)CrossRefGoogle Scholar.

37 See generally Gross & Ni Aoláin, supra note 1, at 171-243.

38 Posner & Vermeule, supra note 2, at 4.

39 The Defence of the Realm Act was a general statutory scheme of wartime government. It institutionalized emergency powers in Britain, and has been described as nothing short of “a form of statutory martial law.” See Townshend, Charles, Political Violence in Ireland: Government and Resistance since 1848 183 (1983)Google Scholar.

40 See Simpson, A. W. Brian, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (2001)Google Scholar.

41 See Lustick, Ian, Unsettled States, Disputed Lands: Britain and Ireland, France and Algeria, Israel and the West Bank-Gaza 242–52 (1993)Google Scholar.

42 See Gross & Ni Aoláin, supra note 1, at 190-202

43 Id. at 4.

44 See, e.g., the statement of John Ashcroft, former United States Attorney-Genera1, “To those who scare peace loving people with phantoms of lost liberty, my message is this: your tactics aid terrorists for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends,” quoted by Milligan, Susan, Critics Aid Terrorists, AG Argues, Boston Globe Dec. 7, 2001Google Scholar, at A34.

45 The dual negative consequences for liberty and security are confirmed by the research undertaken by the International Helsinki Federation which has usefully identified 8 key areas of rights protections that have been negatively affected by State responses to terrorism since the events of September 11.

46 The Secretary-General, Report of the Secretary-General, Threats, Challenges and Change, 2, ¶ 11, delivered to the General Assembly, U.N. Doc. A/59/565 (Dec. 2, 2004)Google Scholar.

47 G.A. Res. 60/288, U.N. Doc. A/RES/60/288 (Sept. 8, 2006).

48 Policy Working Group on the United Nations and Terrorism U.N. GA/SCOR, 57th Sess., Annex I at 8, U.N. Doc. A/57/273-S/2002/875 (2002). The Policy Working Group Report makes clear that the core strategies of the United Nations in opposing terrorism are (a) to dissuade those who are (or might be) involved in terrorism (b) to deny support (material, financial, political and legal) to those involved in terrorism and (c) to sustain co-operation between States to thwart the actions and aims of those engaged in terrorism.

49 Id. at 1.

50 See Report of the Special Rapporteur to the General Assembly, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development A/HRC/6/17, Nov. 21, 2007.

51 Id. at 22.

52 In this context, it is useful to recall Recommendation 1550 (2002) of the Council of Europe's Guidelines on Human Rights and the Fight Against Terrorism, as adopted by the Council of Ministers in July 2002. The Office of the U.N. High Commissioner for Human Rights Office has expressed concerns that measures taken to eliminate terrorism may be activated in such as way as to inftinge on fundamental freedoms.

53 See, e.g., Delahunty & Yoo, supra note 7. (Arguing that serious harm might fall to American national security if the United States Constitution were read to impose international law as a constraint on the legitimate exercises of the President's Chief Executive and Commander-in-Chief powers).

54 See, e.g., Rumsfeld, Hamdi v., 542 U.S. 507 (2004)Google Scholar; Rumsfeld, Hamdan v., 126 S. Ct. 2749 (2006)Google Scholar.

55 Posner & Vermeule, supra note 2, at 12.

56 See Roach, Kent, September I1: Consequences for Canada 21–55 (2003)Google Scholar.

57 He has argued:

Had the September 11 terrorists planned their crimes in Canada and had law enforcement officials been aware of their activities, the existing law would have allowed them to be charged and convicted of serious crimes before they boarded the aircraft. They would have been guilty of conspiracy to hijack the plane, conspiracy to murder, attempted hijacking, or attempted murder when they were still planning their suicide missions. Such offences already carry high maximum penalties, including life imprisonment. The failure of September 11 was one of law enforcement, not of the criminal law.

Id. at 23.

58 Roach, supra note 56, at 24; The Crime Conundrum (Friedman, L. & Fisher, G. eds., 1997)Google Scholar.