EMERGENCY, CIVIL LIBERTIES IN

Discussions of civil liberties in emergency are plagued by the recurrent problem of defining the kind of situation designated by the term ‘‘emergency.’’ According to German jurist Carl Schmitt, sometimes thought of as the theorist of the Third Reich, the ‘‘exception’’— closely related to the emergency—can only be declared, not defined; hence, ‘‘Sovereign is he who decides on the exception.’’ Justice Stone, concurring in Duncan v. Kahanamoku (1946), a case involving martial law, described ‘‘the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety.’’ As he explained, ‘‘[t]he Executive has broad discretion in determining when the public emergency is such as to give rise to the necessity of martial law, and in adapting it to the need.’’ While the emergency may coincide with war, it need not do so. Likewise, although foreign relations may be implicated, the emergency may possess a largely domestic compass, as in the case of civil unrest. It may, indeed, be in the nature of the emergency to defy definition except in contradistinction to a ‘‘normal’’ state of affairs. And, in general, in an emergency, the survival of the nation is thought to be at stake. In this respect, the emergency stands in the lineage of the ‘‘raison d’etat,’’ or ‘‘reason of state,’’ which designates, according to one formulation, ‘‘the doctrine that whatever is required to insure the survival of the state must be done by the individuals responsible for it, no matter how repugnant such an act may be to them in their private capacity as decent and moral men.’’ Initially derived from Italian political theory, this concept found expression in the Anglo-American context in John Locke’s discussion of prerogative in the Second Treatise of Government. Although economic emergencies have sometimes swept the United States—most notably during the Great Depression—the most prevalent associations with emergency involve the imminent threat of violence.

The main questions that arise in considering emergency situations involve who identifies or constructs the existence of an emergency, and by what means; the scope of extraordinary powers sought to resolve the declared emergency; and the emergency’s duration. As Schmitt’s and Justice Stone’s comments suggest, the executive has traditionally taken charge of designating emergency situations. Some constitutions, like that of Poland, contain explicit provisions concerning emergencies and specify the mechanism by which an emergency is to be announced; that is not the case in the United States. The most relevant constitutional clauses include those articulating Congress’s power to declare war and to call forth the militia (art. I, sec. 8, cls. 11 and 14), and the provision for suspension of the writ of habeas corpus (art. I, sec. 9, cls. 2). Despite the congressional nature of these related powers, the president has, in emergency situations, often issued an executive order concerning the emergency or simply taken what he asserts is necessary action. In the attempt to reduce the likelihood of executive overreaching during and through times of emergency, the constitutions of many other countries, such as Estonia, have granted legislatures a greater role in declaring and limiting the duration of emergencies. Some have argued that this strategy is currently being or should be employed in the United States as well. A proposal put forth by Professor Bruce Ackerman would involve a ‘‘supermajoritarian escalator,’’ under which the president would be given ‘‘the power to act unilaterally only for the briefest period—long enough for the legislature to convene and consider the matter, but no longer,’’ and subsequent action would have to be approved by everincreasing supermajorities in Congress. Professors John Ferejohn and Pasquale Pasquino assert that a similar reliance on legislative action to delegate emergency powers to the executive has been on the rise internationally, and that a ‘‘new model of emergency powers . . . has evolved over the past half century, at least for the advanced or stable democracies.’’

A related concern implicates the scope of the emergency powers exercised, and who is authorized to employ them. To the extent that the president acts in an emergency, he may do so either pursuant to a statute or through authority derived directly from particular provisions of Article II of the Constitution. In Youngstown Sheet & Tube Co. v. Sawyer (1952), involving President Truman’s seizure of the steel mills ‘‘to avert a national catastrophe which would inevitably result from a stoppage of steel production’’ when a strike was threatened during the Korean War, Justice Jackson’s concurrence articulated three categories of presidential action and described the relative legitimacy of each. According to Jackson’s typology, ‘‘[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum,’’ while ‘‘in absence of either a congressional grant or denial of authority,’’ a ‘‘zone of twilight’’ exists where the president may have concurrent authority with Congress, and, finally, the president’s ‘‘power is at its lowest ebb’’ when he ‘‘takes measures incompatible with the expressed or implied will of Congress.’’ After the events of September 11, 2001, the government has, however, insisted in several instances that Article II of the Constitution grants the president a more extensive overarching power than its individual clauses alone provide. For example, in the case of Yaser Esam Hamdi, a U.S. citizen captured during hostilities in Afghanistan and subsequently held in a naval brig in South Carolina, the government claimed that ‘‘the Executive possesses plenary authority to detain [citizens considered ‘‘enemy combatants’’] pursuant to Article II of the Constitution’’ (Hamdi v. Rumsfeld [2004]). The extent to which the president can exercise power independent of congressional authorization during times of emergency thus remains subject to dispute. Granting the president greater capacity in emergencies could have an adverse impact on civil liberties because it would diminish the check on executive aggrandizement provided by the constitutional separation of powers.

Tactics employed to deal with the emergency may also directly infringe upon civil liberties through three mechanisms, or a combination of them: legislation granting the government greater powers of surveillance or limiting the freedom of association, executive action contravening or exceeding the scope of statutes designed to protect certain rights, or reduction in the compass of those liberties that are constitutionally based. Historically, noncitizens have been subject to the most dramatic restrictions on their civil liberties, as David Cole has demonstrated in Enemy Aliens, and, with the increasingly international reach of the United States, those located outside the country have suffered more extreme forms of rights deprivation. The judiciary has tended to acquiesce in the political branches’ violation of civil liberties during emergency, either by refraining from vindicating individuals’ rights until after a particular crisis has ended, as in the post–Civil War case Ex parte Milligan (1866), or by upholding the government’s actions on the grounds of necessity, as in the World War II case Korematsu v. United States (1944). Which alternative is worse has been the subject of some dispute. Whereas some commentators—such as Kathleen M. Sullivan— insist that constitutional norms should remain the same during times of emergency, others—such as Mark Tushnet and Oren Gross—maintain that accommodation is the right approach, whether achieved by the Supreme Court’s recognition of a difference between normal and emergency situations or by allowing public officials to take extralegal measures in moments of crisis that the public may or may not subsequently ratify. A recent empirical study by Lee et al. has concluded counterintuitively that emergency does affect judicial decision making, but only with respect to non-war cases.

The right of habeas corpus is the only one that the Constitution explicitly contemplates suspending under certain circumstances. Because of the placement of the Suspension Clause amid the limitations upon Congress’s powers in Article I, scholars and judges have concluded that the legislature alone has the capacity to restrict availability of the writ. The executive branch has not, however, accepted this judgment without resistance. In 1861, towards the beginning of the Civil War, President Lincoln proclaimed a suspension of the writ in certain areas; although Chief Justice Taney, riding circuit, vehemently rejected the constitutionality of this purported suspension, in the 1861 case Ex parte Merryman, the Supreme Court itself never adjudicated the question. Congress subsequently granted the president authority to suspend habeas corpus ‘‘during the Rebellion’’—an authority that Lincoln rapidly and comprehensively implemented— but simultaneously provided for judicial review of detentions (An Act Relating to Habeas Corpus). More recently, under President George W. Bush, the government contended that the writ was not available to ‘‘enemy combatants’’ or to those detained outside the territorial limits of the United States. The Supreme Court’s opinions in Rasul v. Bush (2004) and Hamdi v. Rumsfeld confirmed respectively, however, that at least a partial right of habeas corpus remained for individuals held at the military base in Guantanamo Bay, Cuba, and that, in general, ‘‘a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.’’

Internment has also been employed in a manner comparable to executive branch detention. Subsequent to the bombing of Pearl Harbor, President Franklin Delano Roosevelt issued Executive Order 9066, which excluded Japanese Americans, including citizens, from certain areas of the West Coast, on the grounds of military necessity; Congress soon criminalized failure to obey this directive. Fred Korematsu, a Japanese American, was convicted of violating the order. In its decision on his appeal, the Supreme Court insisted that racial classifications should be subject to strict scrutiny— but that the exclusion of Japanese Americans under emergency circumstances satisfied this searching review. In doing so, Justice Black deferred to the judgment of the ‘‘war-making branches’’ that ‘‘exclusion of the whole group was . . . a military imperative’’ (Korematsu v. United States). Although recognized as one of the most reviled cases that the Supreme Court has ever decided, Korematsu remains good law. At the same time, however, the Court in Ex parte Endo (1944), in language reminiscent of the technique of constitutional avoidance, construed the War Relocation Authority’s continued detention of loyal Japanese Americans—as opposed to their exclusion from particular areas—as exceeding its delegated capacity; the decision effectively coincided with the end of the relocation camps.

The government has infringed on civil liberties in times of emergency in ways short of detention or internment as well. During World War I and the subsequent red scare, as well as the cold war, among other periods of conflict, First Amendment freedoms of speech and association were statutorily curtailed, with the Supreme Court’s partial acquiescence. Commentators have likewise argued that the Fourth Amendment’s prohibition against unlawful searches and seizures has been relaxed during times of emergency. The most notable recent examples include the expansion of various forms of surveillance under the USA Patriot Act, passed just days after the attacks of September 11, 2001, as well as President Bush’s secret program for collecting data on telephone calls routed through the United States.

Finally, measures taken during emergency have often curtailed the cluster of rights surrounding the trial of an accused individual. During both the Civil War and World War II, the executive established military commissions and tried various individuals under these tribunals, thus circumventing a number of due process guarantees, including that of trial by jury. In ruling on the constitutionality of these commissions, the Supreme Court held that, although the government cannot subject civilians to trial by military tribunal when the courts are actually open (Ex parte Milligan), it may so prosecute allegedly unlawful combatants, whether citizens or not (Ex parte Quirin [1942]). The ‘‘war on terrorism’’ has sparked renewed debate about the constitutionality, advisability, and legality under international law of trial by military commission. While the Bush administration initially promoted the notion of trying al- Qaeda operatives and other suspected terrorists by military tribunal, it soon resorted to a strategy of indefinite detention at Guanta´namo Bay and elsewhere. Language from the plurality’s opinion in Hamdi suggested that the government might meet the due process standards for establishing that an individual should be identified as an ‘‘enemy combatant’’ ‘‘by an appropriately authorized and constituted military tribunal.’’ The Hamdan v. Rumsfeld (2005) case—granted certiorari during the October 2005 term—likewise concerns the validity under domestic and international law of a trial by military commission. The Supreme Court has, however, declined to answer the question of whether the government can, consistent with the public’s First Amendment right of access to certain types of judicial proceedings, close so-called ‘‘special interest’’ deportation hearings (North Jersey Media Group v. Ashcroft [2003]).

Finally, the duration of emergency—or even of war—may have implications for its effect on civil liberties as well. To avoid the situation of permanent or semipermanent emergency—such as occurred in South Africa under apartheid—many countries’ constitutions prescribe temporal limitations upon declared emergencies. The current ‘‘war on terrorism’’ does not, however, possess a well-defined endpoint. Nor is it likely under the Court’s current construction of political question doctrine that the question of the termination of this—or any war—would be subject to judicial review (Baker v. Carr [1962]).

BERNADETTE MEYLER

References and Further Reading

• Ackerman, Bruce, The Emergency Constitution, Yale Law Journal 113 (2004): 5:1029–1092.
• Amar, Akhil Reed, and Vikram David Amar, The New Regulation Allowing Federal Agents to Monitor Attorney– Client Conversations: Why It Threatens Fourth Amendment Values, Connecticut Law Review 34 (2002): 4L1163–1167.
• Cole, David. Enemy Aliens. New York: New Press, 2003.
• ———., The New McCarthyism: Repeating History in the War on Terrorism, Harvard Civil Rights-Civil Liberties Law Review 38 (2003): 1:1–30.
• Dauber, Michele Landis, The Sympathetic State, Law and History Review 23. (2005): 2:387–442.
• Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).
• Ellmann, Stephen. In a Time of Trouble: Law and Liberty in South Africa’s State of Emergency. Oxford: Oxford University Press, 1992.
• Epstein, Lee, Daniel E. Ho, Gary King, and Jeffrey A. Segal, The Supreme Court During Crisis: How War Affects Only Non-War Cases, New York University Law Review 80. (2005): 1:1–116.
• Ferejohn, John, and Pasquino, Pasquale, The Law of the Exception: A Typology of Emergency Powers, International Journal of Constitutional Law 2 (2004): 2:210–239.
• Friedrich, Carl J. Constitutional Reason of State: The Survival of the Constitutional Order. Providence, RI: Brown University Press, 1957.
• Gross, Oren, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional? Yale Law Journal 112 (2003): 5:1011–1034.
• Gudridge, Patrick O., Remember Endo? Harvard Law Review 116 (2003): 7:1933–1970.
• Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934).
• Koh, Harold Hongju, The Case Against Military Commissions, American Journal of International Law 96 (2002): 2:337–344.
• Lichtblau, Eric. ‘‘Officials Want to Expand Review of Domestic Spying.’’ New York Times, December 25, 2005.
• Locke, John. Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press, 1988.
• Mark Tushnet, Defending Korematsu? Reflections on Civil Liberties in Wartime, Wisconsin Law Review 2003 (2003): 273–307.
• Mayer, Jane. ‘‘Outsourcing Torture: The Secret History of America’s ‘Extraordinary Rendition’ Program.’’ New Yorker, February 14 and 21, 2005.
• Posner, Eric A., and Vermeule, Adrian, Accommodating Emergencies, Stanford Law Review 56 (2003): 3:605–44.
• Reed, Christopher. ‘‘Are American Liberties At Risk?’’ Harvard Magazine, January–February 2002: 100–1 (summarizing Kathleen M. Sullivan’s Tanner Lecture on ‘‘War, Peace, and Civil Liberties’’).
• Rehnquist, William H. All the Laws but One: Civil Liberties in Wartime. New York: Vintage Books, 2000.
• Rostow, Eugene, The Japanese American Cases—A Disaster, Yale Law Journal 54 (1945): 3:489–533.
• Rotenberg, Marc, Privacy and Secrecy After September 11, Minnesota Law Review 86 (2002): 6:1115–1136.
• Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. Trans. George Schwab. Cambridge, MA: MIT Press, 1985.
• Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W.W. Norton & Co., 2004.
• Tribe, Lawrence H., and Gudridge, Patrick O., The Anti- Emergency Constitution, Yale Law Journal 113 (2004): 8:1801–1870.
• Wedgwood, Ruth, Al Qaeda, Terrorism, and Military Commissions, American Journal of International Law 96 (2002): 2:328–337.
• Whitehead, John W., and Aden, Steven H., Forfeiting ‘Enduring Freedom’ for ‘Homeland Security’: A Constitutional Analysis of the USA PATRIOT Act and the Justice Department’s Anti-Terrorism Initiatives, American University Law Review 51 (2002): 6:1081–1133.

Cases and Statutes Cited

• Albanian Constitution of 1998, Article 173 ‘‘An Act Relating to Habeas Corpus,’’ 12 Stat. at Large, 755 (1863)
• Baker v. Carr, 369 U.S. 186, 213 (1962)
• Constitution of Poland of 1997, Article 228
• Duncan v. Kahanamoku, 327 U.S. 304 (1946)
• Estonian Constitution of 1992, Articles 65, 129
• Ex parte Endo, 323 U.S. 283, 287 (1944)
• Executive Order Concerning the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Federal Register 57 (November 13, 2001): 833
• Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), cert. granted 126 S.Ct. 622 (November 7, 2005)
• Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
• Korematsu v. United States, 323 U.S. 214, 215–16 (1944)
• Ex parte Merryman, 17 F. Cas. 144 (1861) Ex parte Milligan, 71 U.S. 2 (1866)
• North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), cert. denied 538 U.S. 1056 (May 27, 2003)
• Ex parte Quirin, 317 U.S. 1 (1942)
• Rasul v. Bush, 542 U.S. 466 (2004)
• USA Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001)
• Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)