State of Emergency.

Before the Next Attack

Preserving Civil Liberties in the Age of Terrorism

Bruce Ackerman

Yale University Press, $26, 240 pp.

Yale law professor and constitutional theorist Bruce Ackerman is known as a tireless advocate of civil liberties, vocal in his unsparing critique of the Bush administration's terrorism policies and the Supreme Court's recent terrorism-related decisions. In Before the Next Attack he raises a vexing question: What sort of constitutional response to terror might address its uniquely destructive and destabilizing threats--including its disruption of normal legal categories--while respecting and protecting our liberties? His answer is a provocative idea: declaration of a temporary state of emergency, with its continuation dependent upon what he calls a "supermajoritarian escalator," or periodic renewal by the approval of a series of increasingly large congressional majorities.

Before the Next Attack spends a lot of time assessing the threat we face today, carefully defining what it is--and what it isn't. Ackerman insists we are not engaged in a "war on terror," a concept he considers "preposterous." Where terrorism is "a technique of intentional attacks on innocent civilians," he argues, real wars threaten destruction or occupation of entire sovereign states. As much damage as they can do (including wiping out a major city with an atomic weapon), terrorists, in Ackerman's view, cannot destroy our independence or political system. However traumatic, the sporadic outbreaks of mass violence that constitute terrorism are not an "existential threat" to the nation on the order of the Civil War and World War II. "Osama in his cave," the author maintains, "doesn't remotely resemble the totalizing threat of Hitler in his chancellery."

To his credit, Ackerman recognizes that terrorism's goal--to destabilize the state's authority--justifies some stretching of traditional restraints on investigative and prosecutorial powers. Such measures should take place, however, only in the context of a legally defined and circumscribed state of emergency. His scheme for such a system would limit the president to one or two weeks of extraordinary emergency powers, with a two- or three-month extension if approved by a congressional majority. Continuation beyond that would require "an escalating cascade of supermajorities: 60 percent for the next two months, 70 for the next, and 80 for each subsequent period."

The insistence on ever-increasing supermajorities discloses the true animus of this book. Despite its ominous title, Before the Next Attack is concerned less with the threat to our government than the threat emanating from it; the real specter haunting these pages is not Osama, but Orwell. What Ackerman really fears is the permanent war state, "a dangerous normalization of the state of emergency." In his view, such a normalization encourages the government to assault civil rights under the rhetorical cover of war talk. How telling that the author found his big idea in a provision of the South African constitution written to correct the previous regime's long-term abuse of emergency powers; his plan's antiauthoritarian pedigree indicates how dangerous he considers our current administration in America to be.

Ackerman insists we must find a way to combat terror without "suspending law and political morality." To do otherwise would be to cede victory to bin Laden and others who want us "to destroy ourselves, throwing away our priceless heritage of liberal democracy in a panic cycle leading to authoritarianism." Instead, the state of emergency he prescribes would be "a way of expressing law and morality in a distinctive key, guided by special principles." Dragnet arrests, quarantines, warrantless searches, suspension of habeas corpus, and the like would be permitted only in accordance with strict rules. Before the Next Attack envisions emergencies that would last for short, fixed terms. As distinct from the continuous assaults of a real "war," paroxysms of violence such as 9/11 constitute "episodic terrorism," and the appropriate response, the author reasons, should be similarly gauged. By subjecting our counterterror measures to rigorous tests and limitations, Before the Next Attack, as its subtitle announces, aims at nothing less than showing how to "preserve civil liberties in the age of terrorism."

Despite such ambitious intentions, this is a deeply annoying book. Ackerman's tone is disconcertingly garrulous; his prose is sprinkled with casual contractions, his legal analysis to the reader ("I urge you to reject the president's false dichotomy"), and his counterarguments are couched as cozy chats ("See Bruce, we told you so, Americans can count on the Court when the going gets rough"). When discussing Korematsu, the infamous Japanese internment decision, the author cloyingly channels Dr. Seuss, calling it "bad law, very bad, very, very bad law." Such chattiness feels patronizing.

Worse still is the portentous presentation of ideas that on closer inspection look conspicuously flimsy. Before the Next Attack raises and dismisses numerous objections, but fails to grapple with the real problems of Ackerman's proposal. First is the problem of when the state of emergency would be triggered. Ackerman sets an improbably high threshold: "September 11, to my mind," he writes, "represents the low end for the legitimate imposition of a state of emergency." Sporadic, "low-level" bombings would not be enough; indeed, he envisions such attacks--"sadly," he confesses--as "part of the background conditions of ordinary life." Such sang-froid is impressive, perhaps, but one wonders how much "low-level" bombing the American people should be expected to take. Ackerman doesn't have much to say for preparedness, either. Citing the silliness of orange alerts, he tells us that in his judgement "a 'clear and present danger' test generates unacceptable risks of political manipulation," and that "I would insist on an actual attack." No emergency powers, in other words, until terrorists fly a few more jetliners filled with people into national monuments, or something similarly drastic.

The proposals put forth in this book would severely hamper not just prevention, but investigation as well. For instance, once an attack devastating enough to trigger the state of emergency actually happens, the "bureaucrats" had better be careful about whom they arrest, because the government will be required to pay substantial compensation to those it detains without the ability to indict them under the criminal law before the end of the emergency. Of course, this obligation would seriously inhibit investigators' willingness to use their emergency powers, only adding to the difficulty of disrupting covert networks plotting mass destruction. Such inhibitions are precisely what Ackerman seems to want. One closes Before the Next Attack wondering: Is his proposal primarily a provocation, a rhetorical ploy designed to rebuke our current administration, or does he really mean it? And, if he does, might not the system he proposes, so patently burdened by onerous constraints that it all but advertises its own toothlessness, actually invite the next attack, providing gruesome validation of his book's fatalistic title?

Before the Next Attack would have us adopt a constitutional mechanism usable only in response to at least a September 11-scale calamity, and then so riddled with restrictions that its effectiveness would be limited, to say the least. Perhaps Ackerman's definition of "war" is deficient; perhaps he underestimates the "existential threat" presented by a never-ending struggle with those who would destroy our cities, destabilize our economy, and wreak unimaginable havoc. To respond to that kind of problem, we're going to need legal weapons stronger than the feeble ones Ackerman so grudgingly offers us here.

Mark A. Sargent is dean of the Villanova University School of Law.