The Permanent Emergency

By David K. Shipler

When President George W. Bush went outside existing law to fight terrorism, his unilateral, ad hoc measures were so lacking in authority as to be vulnerable to political pushback and constitutional challenge. They had a transitory quality, cobbled together hastily to address sudden danger. When he ordered the National Security Agency to ignore the Foreign Intelligence Surveillance Act and secretly monitor communications without warrants, when he declared prisoners enemy combatants who could be held indefinitely without lawyers or trials, and when he avoided Congress and established military tribunals on his own, he faced an uproar from both the left and the libertarian right, and the prospect of reversal in the courts.

But now, more than a decade after 9/11, most of the policies that once seemed so extraordinary have been codified in law and practice, and recently portrayed by Attorney General Eric Holder as permanent, justifiable features of the legal landscape. This sea change in the constitutional culture will be difficult to undo, and it may lead eventually to a harsh judgment by history.


Perhaps the country will look back on this post-9/11 era in shame, as it now sees the Alien and Sedition Acts of 1798, the suspension of habeas corpus during the Civil War, the prosecutions of political dissidents during World War I, the Japanese internment during World War II, and the secret surveillance of civil rights and antiwar leaders during the Cold War. That is the optimistic scenario.

The pessimistic view imagines this not as a finite period but as an unending, fundamental reordering of governmental power against individual liberties: Even as the “war” on terrorism fades in future years, the public’s anxiety does not. Even as al-Qaeda is superseded by offshoots and fragmented conspiracies, the inchoate threat remains ominous. The government’s expansive authority to do surveillance, to kill suspected Americans who can’t be readily captured, to place anyone in military detention indefinitely, and to try non-U.S. persons in military commissions become accepted practice. That these awesome powers reside wholly within the executive branch, undermining the checks and balances that the framers calibrated so carefully, seems a minor technicality. The citizenry is comforted by measures that are largely invisible.

President Obama is not leading in the right direction. He inherited this structure, then endorsed revisions that make it less outrageous but also more durable. The Military Commissions Act of 2009, for example, provides defendants’ rights against the admissibility of coerced testimony, hearsay, and warrantless searches that the earlier version, enacted in 2006, did not. But the commission system remains flawed. It lacks judicial independence, still has room for unchallenged evidence, and operates in a vacuum, without the body of case law that have seasoned the civilian courts.

No alternative seems politically viable, given the country’s odd mood. Big government today generates both fury and acquiescence, usually among the same citizens—fury at its intrusions into the imagined right not to buy health insurance, acquiescence to its intrusions into the actual Bill of Rights. Conservatives have cornered Obama into being as tough on the Bill of Rights as his predecessor, determined to leave no daylight between himself and the Republican candidates, lest he be branded soft on terrorism. He has enough problems without inviting that one.

So his chief law enforcement officer pictures the extraordinary measures as everlasting. He wants to renew widespread communications surveillance without effective judicial oversight. He simplifies the complex phenomenon of terrorism so it fits into the laws of war, which legitimize extra-legal measures immune from the inconvenience of due process and fact-finding. He envisions military commissions—which he once opposed as major venues for terrorism trials—as so routine that they attain ultimate international acceptance.

Here is Holder in a recent speech at Northwestern: “A number of countries have indicated that they will not cooperate with the United States in certain counterterrorism efforts--for instance, in providing evidence or extraditing suspects--if we intend to use that cooperation in pursuit of a military commission prosecution. Although the use of military commissions in the United States can be traced back to the early days of our nation, in their present form they are less familiar to the international community than our time-tested criminal justice system and Article III courts. However, it is my hope that, with time and experience, the reformed commissions will attain similar respect in the eyes of the world.”

With time and experience: That is the subtext of Holder’s address. Although it received most attention for its thin defense of the president’s authority to target Americans for death, the speech is equally troubling for its failure to imagine an ending. The "hour of danger" Holder mentions never comes to conclusion. He applies an ample sugar-coating of platitudes about constitutional rights that argue for a permanent emergency. If a supposedly liberal administration behaves as if all this is never going away, there seems little prospect for reform. There is no audacity of hope.