Before the Next Attack

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

Bruce Ackerman
Copyright Date: 2006
Published by: Yale University Press
Pages: 240
https://www.jstor.org/stable/j.ctt1npsrp
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  • Book Info
    Before the Next Attack
    Book Description:

    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.

    eISBN: 978-0-300-12703-4
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. INTRODUCTION: THE EMERGENCY CONSTITUTION
    (pp. 1-10)

    Imagine waking up the morning after the next terrorist attack. You may feel a range of emotions: grief, anger, fear. And you will be relieved when you turn on the television and hear the president promise decisive action. Spurred on by self-righteous indignation and anxious self-defense, the government will spend billions over the next few months to prevent the repetition of the disaster—and a good thing too.

    Day after day, a predictable range of reactions will play themselves out on television: the emphatic gestures of solidarity with the thousands who have lost their loved ones in the senseless blast,...

  4. Part I. Diagnosis
    • 1 THIS IS NOT A WAR
      (pp. 13-38)

      “War on terror” is, on its face, a preposterous expression. Terrorism is simply the name of a technique: intentional attacks on innocent civilians.¹ But war isn’t merely a technical matter: it is a life-anddeath struggle against a particular enemy. We made war against Nazi Germany, not against the Blitzkrieg.²

      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?...

    • 2 THIS IS NOT A CRIME
      (pp. 39-57)

      The “war on terror” dominates political rhetoric, and so my first task has been to loosen its grip on the public mind. But “war” isn’t the only big idea that recurrently emerges when we talk about our current predicament. “Crime” provides a second, and competing, paradigm: if politicians have been eagerly waging war, legal traditionalists have been insisting that the tried-and-true principles of the criminal law suffice to deal with our problem.

      And to a large extent, they are right. The basic principles of criminal due process are the product of centuries of struggle against arbitrary power. They have proven...

    • 3 THIS IS AN EMERGENCY
      (pp. 58-74)

      No applause from me. I urge you to reject the president’s false dichotomy and consider a different way of responding to the next terrorist strike: declare a temporary state of emergency, and wait for the smoke to clear before taking further action that may, or may not, include a decision to take the country to war against a rogue state.

      But I have developed only the first stage of my thesis. Even if a state of emergency might, in principle, serve as a third way between “war” and “crime,” a host of more practical objections loom. Legislative innovation is a...

  5. Part II. Prescription
    • 4 THE POLITICAL CONSTITUTION
      (pp. 77-100)

      The problem is to prevent a second strike; the solution is to declare a temporary state of emergency. But between the problem and the solution lies the challenge: how to design an institutionally credible emergency constitution that will permit an effective short-term response without generating insuperable long-term pathologies?

      My answer depends heavily on political checks and balances. This chapter elaborates the system, while the next considers the role of judges in assuring its integrity. I hope to provide operational principles, not blueprints. Particular details are merely illustrative and should not detract from the main point: to see how the emerging...

    • 5 THE ROLE OF JUDGES
      (pp. 101-121)

      We have been constructing a political machine to restrain the use of extraordinary power, but can it operate reliably on its own? Or does it require the judiciary to play a series of backup functions? If so, are judges up to the job? These questions explore the capacity of courts to superintend the institutional dynamics of the new system—intervening at strategic moments to sustain its operation at times of stress.

      I will call this the problem of macromanagement, and it will generate lots of hard questions. Whatever the right answers, the issues are very different from those arising from...

    • 6 AMERICAN EXCEPTIONALISM
      (pp. 122-141)

      Terrorism isn’t a uniquely American anxiety. The next massive strike may occur in Paris or Berlin, New Delhi or Tokyo. Since this is a worldwide problem, I have been sketching the outlines of a general solution. But each country has a different constitutional tradition, and no single proposal will fit all institutional setups.

      As we take the next step toward implementation, one point is key: some constitutions are much harder to change than others. Generally speaking, constitutions written in the twentieth century have done a pretty good job of avoiding the dangers of extreme rigidity—making amendment difficult, but not...

    • 7 IF WASHINGTON BLOWS UP?
      (pp. 142-168)

      Although the next attack may devastate Chicago or Los Angeles, it may not touch Washington, D.C. On the morning after, there will still be a president, Congress, and Supreme Court to take charge.

      Yet fate may not be so kind, and decapitation poses distinctive challenges. The emergency constitution must move fast to select leaders who can gain the confidence of the country. By the next morning, we should know who will be serving as president, and before the week is out, an anxious citizenry should see new leaders converging on a makeshift Capitol and Supreme Court to continue the work...

    • 8 THE MORNING AFTER
      (pp. 169-174)

      Born in the American and French Revolutions, liberal democratic constitutionalism has struggled against the odds for two centuries—against monarchy, against Nazism, against Communism—to achieve an uncertain hegemony. No competing ideal has the same universal appeal. Only the most fervent fanatic dreams of the day when all mankind worships Christ or Allah, but the most pragmatic pragmatist cannot dismiss the possibility that, in a century or two, the entire world will be governed by variations on themes first elaborated by John Locke and Immanuel Kant.

      We are dealing only with a possibility, not a probability, much less a certainty....

  6. NOTES
    (pp. 175-208)
  7. ACKNOWLEDGMENTS
    (pp. 209-212)
  8. INDEX
    (pp. 213-227)