Wednesday, April 05, 2006

Bruce Ackerman's Folly

"There will be another successful attack, and the next time around, the president—whoever he or she may be—will be in a position to use Padilla as a precedent to sweep hundreds or thousands of American citizens into military detention camps," writes Bruce Ackerman in today's Jurisprudence.

For Ackerman, the danger that lies in the future is not "another successful attack" but the expectation that a future President will feel free to "sweep thousands of American citizens into..camps."

Missing from this dire forecast is any remotely likely reason why even a much worse terror attack would cast suspicion on "thousands of American citizens" or why a future President would think there some benefit in rounding up "thousands." After all, the 9/11 attacks were pretty damn deadly and yet only two American citizens have ever been designated as "enemy combatants," one of them captured in abroad and one in Chicago, Padilla, who has now been charged with crimes.

Also missing is any appreciation of the possibility that by detaining such dangerous characters as Padilla, the likelihood of "another successful attack" has been reduced, which is of course the whole point. Fortunately for all of us, at least six members of the Supreme Court have the good sense, unlike Ackerman, to grasp that leaving a little ambivalence in the law where vital matters of security are involved is not at all a bad thing to allow, and that American freedom and democracy will continue to flourish for the next 60 years, as it has for the past 60, despite constant, similar dire warnings of tyranny around the corner from professors at the Yale law school.

In any case, lots of luck getting Congress to pass Ackerman's "emergency constitution," an idea that ought to make him a laughingstock. Basically, he invites Congress to create a constitutional addendum that would enable the very mass detentions he presumably wants to avoid. Once embarked on this path, he seems to think that Congress would be less likely than a President (whoever he or she might be) to go overboard. I submit on the contrary that, faced with an immediate emergency, members of both parties in Congress would seek to out-do each other and the President in handing law enforcement and intelligence agencies the toughest possible weapons. If the police COULD detain thousands of suspects for up to 45 days, they WOULD -- under public presure to do something -- detain thousands of suspects.

Then, when the Feds and our future President are confronted with a new Padilla on his 45th day of detention and believe that he is too dangerous to turn loose even though they may or may not be able to prove any charges at a trial, given the myriad protections afforded defendants in criminal trials, they will find new and inventive ways of keeping him locked up.

One such way, of course, would be to get an already involved Congress to extend the detention period -- a possibility Ackerman anticipates with his idea of escalating super-majorities to ratify any extension of emergency powers (or presumably to make any changes in what those powers are). Actually, I doubt these 60% and 80% requirements would present much of an obstacle. All you need do to see I'm right is to imagine what the vote would be now, much less in 2002, if Congress had to vote on keeping Padilla in jail! The Ackermans apart, there is a great deal of good sense left in this country. (Anyway, wouldn't Congress be able to legislate by simple majorities a change in its prior law requiring a super-majority?)

One other thing struck me about this "emergency constitution" scheme and Ackerman's assumption -- an erroneous one in my view, if we act forthrightly -- of another terrible terrorist attack. What happens under the Ackerman scheme if terrorists manage to blow up the Capitol when both Houses are in seesion and take out 80% of Congress? While such an outcome may be unlikely, it is not far-fetched, certainly not when we know that al Qaeda may indeed have targeted the Capitol on 9/11. Then, the nation would face an "emergency" that Ackerman's acheme has not contemplated -- thus reminding us of the simple fact that emergencies are inherently unpredictable. And that's why our Constitution -- the real one without any specially promulgated codicils -- makes simple and deliberately ambivalent provisions for dealing with the them.

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