In the early days of the Obama presidency, the pledges to close the prison at Guantanamo Bay and to end the “war on terror”—if only semantically—seemed to signal a moment in which the extraordinary executive powers claimed by previous administrations could be rolled back. So, when The Decline and Fall of the American Republic was published in 2010, outlining Bruce Ackerman’s proposal of serious measures to address the previous 50 years of constitutional affront, it was possible to imagine that this new centrist president could install the necessary checks on his own power. If only.
Now, at the book’s paperback publication, we see how truly prescient Ackerman’s been proven, with the book’s then-hypothetical power grabs having become all too real. In the excerpt below, Ackerman details a system for containing the urge to assert new powers after terrorist attacks—new powers that we’ve since seen asserted.
We are at a distinctive moment in modern history: the state is losing its monopoly over the means of mass destruction. Once a harmful technology escapes into the black market, it’s almost impossible for government to suppress the 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 the free market in death. Smaller and smaller groups can obtain more and more lethal weapons at a lower and lower cost—creating a continuing risk of devastating attack. Even if Al Qaeda disintegrates, fringe groups from other places will rise to fill the gap. We won’t need to look far to find them. If a tiny band of native extremists blasted the Federal Building in Oklahoma City, others will detonate suitcase A-bombs as they become available, eagerly giving their lives in the service of their self-destructive vision.
The distinctive contours of this problem aren’t illuminated by standard war talk. Even the greatest wars in American history have come to an end: When Lincoln or Roosevelt asserted extraordinary war powers over American citizens, everybody recognized that they would last only till the Confederacy, or the Axis, was defeated. But the black market in weaponry—a.k.a. the “war on terror”—will never end: whatever new powers are conceded to the commander-in-chief in this metaphorical war, he will have forever.
A downward cycle threatens. After each successful attack, the president will extend his war powers further to crush the terrorists—only to find that a very different terrorist band manages to strike a few years later. This new disaster, in turn, will create a popular demand for more repression, and on and on. Even if the next half-century sees only two or three serious attacks, the pathological political cycle will prove devastating to civil liberties by 2050.
This is the grim prospect currently clouded over by the loud controversies provoked by the Guantanamo cleanup. We should be looking forward, not back—or so President Obama keeps telling us. His challenge is to lead the nation to the real question that haunts our future: how to deal with the cycles of panic that threaten to destroy our constitutional tradition?
By recognizing that terrorist attacks pose special problems, and responding with a special statute that takes them into account. On the one hand, Congress should authorize the president to act decisively in the immediate aftermath of a terrorist attack—and take emergency steps to preempt a second strike. But on the other hand, it should take special steps to prevent the president from exploiting momentary panic to impose long-lasting limitations on liberty.
Here is a framework: My emergency statute begins by granting the president a broad range of extraordinary powers—but only for a week or two while Congress is considering the next step. His powers will then expire unless a majority of both Houses vote to continue them—but even this show of support only extends his emergency powers for two more months. The president must then return to Congress for reauthorization, and this time, a supermajority of 60 percent should be required; two months more, 70 percent; and 80 percent for every two-month extension thereafter. Except for the worst terrorist onslaughts, this “supermajoritarian escalator” will terminate extraordinary measures within a relatively short period.
That is just the point—to prevent the normalization of emergency powers. No longer could each president build on precedents established in previous “wars on terror” to expand the powers of the commander in chief after the immediate attack has passed. Congress would be repeatedly asking itself, and the nation, whether it was time for the presidency to return to normal. Sometimes its answer will be yes; sometimes, no; but the recurrent need to debate this question will mark the terrorist outbreak as an extraordinary period, not a springboard for permanent executive aggrandizement.
Defining the scope of emergency power is a serious and sensitive business—and I’ve given this, and other large issues, full-dress treatment in my book Before the Next Attack. But for the present, it’s best to focus on my centerpiece, the “supermajoritarian escalator,” and ask the obvious question: Will it actually work to restrain presidential power during the next crisis? Or will a runaway presidency simply smash through the barriers erected by the new statute?
To fix ideas, suppose another terrorist attack devastates an American city, and on a far greater scale than September 11. In the meantime, my proposal has been enacted into law, and the president repeatedly gains legislative approval for emergency powers that sweep thousands of suspects into detention and that spies on millions of innocent Americans—all this, he tells us, to detect and prevent another small band from destroying another great American city.
A year has passed without further incident, and a triumphant president returns to Congress for an additional two-month extension. But this time, the Senate turns him down—thirty-five senators vote no, with civil libertarians on the left and the right insisting that the time has come to return to normalcy. Under the statute’s provisions, the president is given two months to wind up the emergency, but after that, his powers lapse.
The next move is up to the president: Will he respond by defying the landmark statute?
My fellow Americans, my decisive actions have saved us from a second attack—and yet a minority in the Senate insists on letting the terrorists roam the streets once again. I cannot abandon my constitutional responsibility in the name of a legal technicality. Sixty-five senators agree that the state of emergency should continue—and that should be enough to satisfy any sensible citizen.
Despite the protests of the dissenters, the Constitution does not give Congress the power to veto essential steps to secure the safety of the nation. When push comes to shove, it gives the commander in chief the final say.
The state of emergency will continue in full force until we finally win our “war against terror.”
Or will the president accept the statutory command, and recognize that the time has come to restore civil liberty in America?