Tgk1946's Blog

Terror and Consent (Philip Bobbitt) pp416-23

416 TERROR AND CONSENT

The competing school that would institutionalize checking devices on executive action relies on ex post action by the judiciary. It implicitly recognizes that the sorts of novel powers the president might need in the aftermath of an attack are actually not likely to require sweeping suspension of law on emergency grounds.

As David Dyzenhaus, like Scheuerman a distinguished scholar of Carl Schmitt, puts it, “the law that rules is not just positive law; the law includes values and principles to do with human dignity and freedom. It also presupposes that judges are the ultimate guardians of those values.” There is much to be said for this approach, and it has also been well said by another law professor, David Cole. He offers several reasons why the case law of common law adjudication especially suits states of consent confronting the difficulties posed by governments acting in crises. Because courts assess situations after matters have cooled a bit, because they must create as well as rely on precedent, because their decisions must be supported by legal arguments rather than simply appeals to necessity because court decisions are available to scrutiny by the press and public, and because the judiciary is relatively independent of politics – for all these reasons we can expect a more deliberate and dispassionate examination of the conflicts that arise when executive power tests its limits.

These are very sensible, even wholesome, observations though, as indicated in the notes, the performance of the US. Supreme Court has not been entirely unsullied by departures from the stricter methods of what Henry Hart, one of the Court’s keenest critics, called “the thrilling tradition of Anglo-American law.” They address the important issue of how to legitimate executive practices by correcting or endorsing the actions of the president and his appointees and how to protect the values and provisions of the US. Constitution. But as with the “emergency constitution,” these observations do not address whether law, as it is at present configured, actually is appropriate to a state besieged by terrorists.

Here is a brief list of the sort of proposals I have in mind. Although these are ideas that are compatible with the newly emerging constitutional order of the market state and responsive to the threats that beset it, they are offered diffidently because the point is not that any particular policies are necessary but rather that we must urgently begin to consider them. As Ackerman wrote:

We are in a race against time. It takes time to confront the grim constitutional future that lies ahead; and more time to separate good proposals from bad ones; and more time to engage in a broad-based public discussion; and more time for farsighted politicians . . . to enact a constitutional framework into law.

Nevertheless, it seems coy not to offer some substantive proposals. Here are a dozen:

I. Enact a federal isolation and quarantine* statute and regulations pursuant to that statute that rigorously spell out the authorities by which persons and designated areas can be sequestered. At present in the US. there is a complete hodgepodge of state and local rules. A good place to start would be the Emergency Health Powers Act (EHPA) proposed by the Centers for Disease Control for adoption by states. This would permit officials to compel a person to submit to a physical exam or a test without a court order. Physicians and other health workers could be directed to do this testing. While court orders would be required for quarantines, officials could quarantine first and go to court afterwards. Officials could compel persons to be vaccinated, isolated, and/or treated for infectious and noninfectious diseases. The EHPA could serve as a model for federal legislation. The US. government would have broad emergency powers temporarily to commandeer facilities, including subways, hospitals, and pharmaceutical laboratories.

2. Create national identification cards with clear and enforceable constraints on the use of the personal information to which the card can be linked. Students, whatever their political leanings, hate this idea. They believe they have an inalienable right to be anonymous when they are properly questioned by a police officer, or seek access to an airplane (though they are quite resourceful when it comes to acquiring identification that would pass a bartender’s scrutiny). As Martha Minow has pointed out, however, the US. government is in the process of creating a national ID by withholding federal highway funds unless states issue driver’s licenses in the same format, although enforcement of the Real ID Act of 2005 has been put off until at least 2009. Doing it that way avoids addressing the issues of privacy that could be thrashed out in a forthright ID plan, which could also adopt the most advanced biometrics. Similar biometric IDs should also be required in Iraq or any urban theater of terrorist operations.

3. Repeal the Posse Comitatus Act and pass new legislation to permit the president to federalize National Guard troops in a natural disaster. The Posse Comitatus Act is a law passed at the end of the Reconstruction period following the American Civil War. The original purpose of the statute was to prevent U.S. marshals from calling on federal troops to supervise elections in the formerly secessionist states of the South, intimidating voters in order to increase the Republican vote. It prohibits federal military personnel and units of the National Guard under federal authority from acting in a law enforcement role within the United States. There are exceptions to this prohibition: the Insurrection Act has been held to authorize the use of federal troops to suppress riots; the Stafford Act grants the president powers that may be invoked when he has declared an emergency; a recent congressional gloss on Posse Comitatus appears to authorize the domestic use of the armed forces in the aftermath of a nuclear or radiological attack. Despite these exceptions, and much recent precedent, the Posse Comitatus Act is still “viewed as a major barrier to the use of US. military forces in planning for homeland defence, [and] many in uniform believe that the act precludes the use of US. military assets in domestic security operations in any but the most extraordinary situations.” The inept handling of the humanitarian crisis caused by Hurricane Katrina is evidence that the US Department of Defense is not well integrated into American disaster relief. Although the president already has the authority to call up reserves in case of a terrorist attack overseas or domestically in case of an attack using WMD, that power does not at present extend to natural or other man-made disasters.

4. Amend the Stafford Act. The Robert T. Stafford Disaster Relief and Emergency Assistance Act (1988) created the mechanism by which the president declares a national emergency, triggering assistance through the Federal Emergency Management Agency. It establishes the process by which a state governor, through a request, can obtain a presidential declaration so that emergency assistance can begin to flow. There must be a request by a governor for the declaration to be made unless it can be shown that the subject of the emergency declaration is the exclusive or preeminent responsibility of the federal government. This mechanism, as we saw during the New Orleans debacle, can pit the White House against a state governor in a test of wills by which either side can withhold consent while the victims of a catastrophe suffer. When FEMA is in the hands of manifest incompetents, there is an incentive on the part of the state to negotiate over the terms of assistance as the price for making the request for a declaration of emergency; when the state is governed by reckless men, the statute provides a handy means of laying blame on the federal government. It should also be noted that, at present, federal authority to override state laws governing quarantines rests on the slender reed of the Stafford Act, which – in an anthrax attack, for example, because anthrax is not communicable – might be held to impose legal requirements some fact patterns would not meet. Finally, the act does not recognize the extra local costs imposed by a terrorist attack, apart from the damage already done; though New York was obliged to suspend travel into Manhattan and heighten security around the U.N. and elsewhere after the 9/11 attacks, the Stafford Act did not cover expenses that were not at the site of the actual “disaster.”

5. Reform FISA to recognize data mining. As I have argued in chapter 5, the Foreign Intelligence Surveillance Act does not contemplate the change from a communications paradigm that is circuit-based and point-to-point to a new paradigm of packet-based information. Nor does its national/international criteria fit the globalization of the communications infrastructure (so that a telephone call originating abroad can appear to be a national call). Most importantly, however, the act does not contemplate the advances made in automated monitoring techniques. The US. executive doesn’t believe it needs new legal authorities to cross-correlate information and analyze traffic flows when that analysis does not depend on the substantive content of an intercepted conversation or the particular identity of its participants, while civil liberties groups and the public at large are concerned that this eavesdropping is done entirely without regulation. A better solution would provide “program” authorization – by judges – augmented by regulations limiting the use of intercepted communications, recording the names of persons whose communications are intercepted, and setting up various checks on how this information is used including after-action review by judges. After disclosing the program of National Security Agency (NSA) intercepts in December 2005, the New York Times also reported that the agency had cooperated with a number of private telecommunications companies, notably including AT&T. While this is precisely the sort of market state, public/private coordination that is needed, the result was a series of lawsuits against AT&T and the gleeful announcement by some of its competitors that they would decline to cooperate if approached by the US. government. What is needed is a statutory basis for these partnerships that will protect private companies from liability and make clear what statutory and regulatory protections are in place for the privacy of their customers. As an additional measure, NSA analysts should be provided with personal security, anonymity where requested, and various home security technologies.

6. Implement statutory rules for preventive detention. Because Congress has not written laws governing the novel problem of terrorists at war with the United States, the US. has attempted to cope with this problem by detaining those believed to be non-POW combatants in accordance with the laws of war. This has led to the absurd conclusion that some persons may be held without charge, indefinitely, even though they have been captured without weapons and dispute the claim that they are combatants. Congress should instead amend Title I 8 of the U.S. Code to provide for (a) the power to hold a person suspected of terrorist activity for twenty-eight days without charges (US. law generally requires that a suspect be charged or released within forty-eight hours), thus conforming U.S. practice to that of the UK; and (b) the detention of any non-US. citizen arrested within the US. on proof of a reasonable suspicion that he is planning or assisting or has executed an act of terrorism. Upon a showing to a court that an immediate trial would be impractical owing to evidence that cannot be publicly revealed or admitted consistent with the rules of evidence, and upon a further showing of reasonable grounds that release of the detainee would significantly endanger the lives of others, any date for the trial of such a crime can be delayed for a period of six months. During this period the government may seek orders extending pretrial detention for further periods of six months, not to exceed two years in toto. Every such order should be subject to appeal. Habeas corpus must be available, consistent with the protection of classified sources and methods. Counsel of the detainee’s own choosing must be provided. Any person so detained who is not thereafter brought to trial and convicted shall be entitled to fair compensation from the US. for the period of detention. Detention should be separate from that of persons convicted of crimes or awaiting ordinary criminal trials. The US. Supreme Court has approved preventive detention for persons deemed a threat to society – the insane, pedophiles, persons with infectious diseases – who are not guilty of having committed crimes.

7. Amend the US. Constitution to provide for the immediate replacement of dead or disabled members of the House of Representatives. The Constitution provides that all members of the House must be elected, in contrast to the members of the Senate who, on the death or resignation of a senator, can be appointed by the state governor to serve until a new election is held. The Constitution also provides that, in order to conduct any official action, the House must have a quorum of half its membership (at present, this number is 218). A dubious nineteenth century ruling of the Speaker holds that this requirement can be adjusted to only half the living members. If this questionable interpretation were correct, then in the event of a catastrophic attack on the membership of the House, the remaining membership would act – no matter how small the number – for the many months before new members could be seated, if it could even be determined precisely how many members were able to function. If the president and vice president were killed or disabled, such a rump House would choose the new president. If the Speaker’s ruling is incorrect, the US. would be without a lower chamber for quite a while, unable to act lawfully, unable even to declare war on its attackers; the entire bicameral legislative process would be paralyzed. In either case, prudence requires that some mechanism be established to replace dead or incapacitated congressmen until new elections are held. There have been several proposals for the appointment of interim members of the House, including alternates who are elected along with the serving member, appointments by the state governors, and other schemes. The best proposal is simply an amendment authorizing the Congress to create its own plan.

8. Rewrite the Presidential Succession Act of 1947. It was President Harry Truman who insisted that the Speaker of the House and the president pro tempore of the Senate be inserted into the line of succession to the presidency; he believed, quite wisely, that someone who had actually run for office could better govern than those cabinet members who, in many cases, have never been elected to anything other than the Council on Foreign Relations and a few clubs. The Constitution, hows ever, limits those eligible to succeed to the office of president to “officers of the United States,” a phrase that has repeatedly been held to mean only officials of the executive branch. Moreover, the current statute is fraught with practical and political pitfalls. The president pro tem (an honorary position usually given to the longest-serving senator of the majority party) is likely to be an elderly, sometimes very elderly, man unused to the rigors of the modern presidency; a Speaker chosen by the majority party in the House is as likely as not in the current era to be of the opposite party to that of the president, a wrenching change following an assassination. These two officials should be removed from the line of presidential succession.

9. Adopt a statute providing for emergency succession to the US. Supreme Court. The appointment of Supreme Court justices has become the most contested front on the political landscape, coincident with the increasing reliance on the Court for the legitimating of government action. Its most grotesque follies – Bush v. Gore and Clinton v. Jones come to mind-have demonstrated that the American people defer to its judgments and accord it a respect that no other branch holds, regardless of the wisdom or even coherence of its worst opinions. Yet at that time when the Court’s legitimating influence will be most needed, the confirmation of a large number of new justices appointed by a single president could well be very difficult to achieve. Congress should create an emergency Court consisting of the chief judges of the thirteen circuit courts (the courts of appeal directly below the Supreme Court). This court would be on the shelf, as it were, and would only decide cases when the number of surviving Supreme Court justices dropped to four or fewer members (who would themselves join this emergency court).

10. Authorize the National Academy of Sciences to study and report on the problem of restricting information about dangerous diseases and biotoxins. This is an especially tricky issue because the distribution of such information facilitates the development of vaccines and antidotes as well as terrorist attacks. It is alarming that the genetic codes for smallpox and polio have been posted on the Web. At the same time, it is idle to assume (and probably idiotic to expect) that the rapid dissemination of scientific information and technology will abate. DNA starter kits can be purchased by any person with access to the Internet. Armed with the growth media thus delivered and with a first-year graduate student’s knowledge of molecular biology, a terrorist group could engineer a deadly virus. Imagine a suicide bomber whose bomb consisted of microscopic viral cells and who simply shook hands with passersby in an international airport or distributed free cups of coffee from a pot into which she had spat. This is a problem of such complexity, and one that requires a consensus in the scientific community that is not currently present, that an NAS study should be authorized and funded by Congress.

11. Create an Article III federal court with special jurisdiction over terrorism cases (we already have specialized courts to deal with patents, tax cases, and bankruptcies). This court would have special rules for the introduction of evidence and the conduct of hearings and trials. With respect to evidentiary matters, statutory provisions would permit the use of hearsay evidence, anonymous witnesses, testimony by affidavit, and self-incriminatory statements offered without coercion but also without the usual warnings; with regard to procedures, judges would have the discretion to seal and redact records and to close hearings. subject to the normal appellate review and habeas corpus proceedings in ordinary federal courts. The principal work of these courts would be to implement a comprehensive system of preventive detention; except for detentions arising from overseas combat, its jurisdiction would be exclusive – it would thus confine military tribunals. By contrast, the jurisdiction of ordinary state and federal courts would still be available for ordinary criminal prosecutions.

12. Adopt information security statutes that require a certain level of protection for those privately held assets that are crucial to the public good, and underwrite insurance programs that indemnify the owners of these assets. By so doing, the market will be brought into play so that companies desiring insurance will be monitored not only by g0vernment agencies but by private insurance investigators, without whose imprimatur neither insurance nor, more crucially, significant credit will be forthcoming from the private sector. This program can serve as the basis for an internationalized solution to the problem of critical infrastructure that can be implemented more quickly and far more effectively than an international convention or series of bilateral treaties.

These brief, summary recommendations are hardly the fount of all wisdom. On the contrary, they are meant chiefly to stimulate others to make their own suggestions. There is, moreover, a superb report written by Philip Heymann and Juliette Kayyem that makes detailed and carefully reasoned proposals on a number of matters (coercive interrogations, indefinite detention, military commissions, targeted killing, the interception and collection of information, surveillance) that might serve as the starting point for congressional action. Furthermore, I am keenly aware that these Specific proposals address only the US. response. It seemed officious to me to propose reforms for Britain, and in any case, I am not well informed enough regarding British statutes and practices to do so. But we must begin, and that beginning starts with a public debate on specific proposals.