In Before the next attack, legal and political philosopher Bruce Ackerman presents a fascinating approach to one of the most pressing and polarizing issues of our time. While debates over the balance between security and civil liberties are nothing new, Ackerman makes an innovative politico-legal contribution that has only been superficially addressed in academic and policy circles. The central proposal of the book is an ‘emergency constitution’ to limit the suppression of fundamental civil liberties after a terrorist attack, while simultaneously maintaining the necessary political and legal mechanisms to prevent a second strike.

The book is presented in the form of a medical analysis, beginning with the ‘Diagnosis’ in which terrorism is examined through the lenses of war, crime and emergency. Ackerman argues that terrorism is distinct from war, in that acts of terror do not directly threaten the political survival and constitutional system of the state. Additionally, he points out that terrorism is not a crime, since criminal organizations, such as the mafia, do not seek to openly confront the legitimacy of government and political order-what Ackerman calls ‘effective sovereignty’ (p. 41). As such, criminal law is not only inadequate, but also incapable of addressing terrorism, given that ‘the normal operation of the criminal law presupposes the effective sovereignty of the state, but a major terrorist attack challenges it’ (p. 43). In dismantling the war-crime dichotomy, Ackerman argues that the period immediately after a terrorist attack is a state of emergency, and it calls for special measures ‘to reassure the public by moving aggressively against a second strike without allowing the president to damage civil and political liberties on a permanent basis’ (p. 67). There is, of course, the danger of normalizing the rhetoric of emergency, as expressed in the United States shortly after September 11 by Dick Cheney as the ‘new normalcy’. This is exactly what Ackerman opposes in advocating terrorism as emergency, and not as war or crime. The most effective method of preventing a perpetual state of emergency, the author argues, is through a unique constitution.

The second part of the book, under the title of ‘Prescription’, offers detailed guidelines for establishing an emergency constitution. Placing primacy on the US tradition of political checks and balances, Ackerman presents three core components of his proposal. First, the political element of the emergency constitution is the ’supermajoritarian escalator’, in which the continuation of a state of emergency would require ‘an escalating cascade of supermajorities’ in Congress to protect against normalization (p. 80). Second, the legal component is embodied by time limits on the detention of terror suspects, and a ‘rigorous respect for decency [by the courts] as long as the traditional protections of the criminal law have been suspended’ (p. 119). Third, the economic factor entails financial compensation for detainees found innocent of any wrongdoing. The book argues that a special constitution consisting of these three components would present the state of emergency as a limited regime, tolerated only as a regrettable necessity and always on the path towards termination. For Ackerman, restoring ‘equilibrium’ between the Executive, Congress and the judiciary is the only way to prevent abuses of emergency power (p. 139). This new configuration is especially relevant to the current political environment, most notably in the United States, where the Military Commissions Act and the National Defence Authorization Act were passed in late 2006, with ominous consequences for the writ of habeas corpus and posse comitatus. These recent events, occurring after the book’s publication, indicate a political and legal movement away from Ackerman’s project of protecting civil liberties, and it is unfortunate that the author was unable to address this dilemma.

Apart from questions on the possibilities for the actual implementation of Ackerman’s emergency constitution, there is also the problem of preventing a ‘first strike’. It is common to hear the argument that constant vigilance and a perpetual state of emergency are now necessary mechanisms for preventing a terrorist attack. This counter-argument is no doubt flawed, but it reflects the dominant perspective on modern counter-terrorism, and could have been addressed more closely in the text. If a ‘cure’ for terrorism is indeed possible, prevailing heads of state and policy-makers working to protect civil liberties in liberal democratic regimes will find value in taking a dose of Ackerman’s juridical prescription for political change. However, it is worth noting that a preventive approach to addressing terrorism and its causes remains in need of research, for it is less effective to treat the symptoms than it is to prevent the disease.

Originally published in: International Affairs 83(3), 2007.

0 Recommend this Post
      view other notable posts

Eliot Che is a researcher and web developer. He studies the political implications of technological transformation and the social effects of virtual space.
Email this author | Profile and posts by Eliot Che

Email this Post
Citation Styles
Print this Post
Save as PDF
Share & Bookmark