In his incisive article, David Cole argues that the commonly made argument about a trade-off between security, individual rights, and civil liberties is wrongly presented since it really stands for strengtheningour security at the expense of infringing on the rights of other people, namely noncitizens. He then proceeds to argue that the real trade-off—their rights for our security—must be abandoned for reasons of principle, pragmatism, and self-interest.
I suggest that Cole’s arguments ought to be viewed as one example of a more general pattern. Legal responses to violent crises and emergencies (of which terrorism is one example) have traditionally been premised on what I call the assumption of separation. The hallmark of that assumption is the belief in our ability to separate counterterrorism measures from ordinary legal rules and norms. The assumption of separation facilitates the tolerance of extraordinary counterterrorism measures. It reassures us that once the threat of terrorism is removed, such extraordinary powers and measures will also be terminated and a return to normalcy ensured. It also informs us that such exceptional powers and measures will not be directed at “us” but only at “them”—the terrorists, the “others.” The severance of emergency from normalcy is sustained by applying several mechanisms of separation, of which the “us versus them” separation discussed by Cole is but one example.
I suggest that fashioning legal tools to respond to emergencies on the belief that the assumption of separation will serve as a firewall to protect human rights, civil liberties, and the legal system as a whole is misguided, as bright-line distinctions between normalcy and emergency are untenable. I present the argument by examining four mechanisms of separation and suggesting that each of them is critically flawed.
1. Sequencing and Temporal Distinctions. Normalcy and emergency are often seen to occupy alternate, perhaps even mutually exclusive, time frames. Normalcy exists prior to crisis and is reinstituted after the emergency is over. Crises constitute brief intervals in the otherwise uninterrupted flow of normalcy. Emergency powers are supposed to apply only while the exigency persists. They are not to extend beyond that time frame into the ordinary.
However, this view of the temporal relationship between normalcy and emergency does not account adequately for the fact that emergencies have become increasingly entrenched and prolonged. Rather than forming the exception, crises may be said to have become the norm. Emergency regimes tend to self-perpetuate, regardless of the intentions of those who originally invoke them. Even the United States has been the subject of an uninterrupted declared state of national emergency for much of the twentieth century. By the mid-1970s, the United States had had no fewer than four declared states of emergency in force spanning a period of more than forty years.
2. Spatial Distinctions. A further separation of emergency from normalcy is set around geographic distinctions. Different legal principles, rules, and norms may be applied in distinct geographical areas that belong to the same “control system”1 such as Great Britain and Northern Ireland, Israel and the Territories, or France and Algeria. The controlling territory applies an emergency regime to the dependent territory, establishing what Gerald Neuman has called “an anomalous zone,” while claiming to maintain a normal legal regime in the controlling territory itself.2 Two examples of such spatial divisions in the wake of the terrorist attacks of September 11 are: 1) the use of the American naval base at Guantanamo Bay as a place to hold detainees outside the sovereign territory of the United States and 2) the allegations that the United States has “contracted” the torture services of other countries by way of extraditing suspected terrorists to such countries where they would be subjected to torture and the information extracted be at the disposal of the CIA and FBI.
But geographic boundaries are permeable rather than integral when emergency powers are concerned.3 Gerald Neuman has already demonstrated that “anomalous zones” threaten to subvert fundamental values in the larger legal system, as sweeping powers used in the dependent territory find their way back to the controlling territory. For example, the experiences of other countries demonstrate the danger that coercive interrogation techniques used abroad will become part of the domestic antiterrorist and potentially even ordinary criminal investigation process.
3. Domestic and Foreign Affairs. It is often asserted that in the area of foreign affairs ordinary constitutional schemes may be more relaxed, with greater deference than usual accorded to executive decisions and policies. This attitude toward foreign affairs assumes a clear separation between “foreign” and “domestic” matters. However, James Madison has already pointed out the difficulties associated with such separation: “[p]erhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.”4
The bright-line separation between foreign and domestic affairs has proven to be problematic. In the era of globalization, the domestic/foreign distinction has been greatly eroded. National governments are under increasing pressure to protect the public against the perceived deleterious effects of globalization on jobs, security, and national identity. Interdependence also accelerates the pace of shift-of-crises from one nation to another, carried over the transmission belts of global trade and commerce, as demonstrated by the East Asian currency crisis of 1997. The time available to national governments to respond to such exigencies is correspondingly reduced. Secrecy, dispatch, and access to broad sources of information—the attributes that have traditionally been considered to put the executive branch in the best position with respect to the conduct of foreign and national security policies—are more likely to be introduced into the domestic scene. Indeed, the move of expansive presidential powers from the area of foreign affairs to domestic affairs has been well documented.5
4. Communal Distinctions. Counterterrorism measures and emergency powers are often perceived of as directed against a clear enemy of “others.” The contours of conflict are drawn around groups and communities rather than individuals. One is either with “us” or with “them.” There is no middle way.
In times of crisis, when emotions run high, the dialectic of “us versus them” allows people to vent fear and anger in the face of danger and direct negative emotional energies towards groups clearly identified as different. It also facilitates the willingness to confer extraordinary powers on government. The clearer the distinction between “us” and “them” and the greater the threat “they” pose to “us,” the greater in scope may such governmental powers be. We allow for more repressive emergency measures when we believe that we can ascertain that such powers will not be turned against us.
Take for example the issue of racial and ethnic profiling. In the past, an overwhelming majority of the American public considered racial and ethnic profiling to be wrong. The terrorist attacks of September 11 brought about a dramatic reversal in public opinion on this issue.6 This change in public attitude resulted from the fact that the September 11 terrorists had all been Arab Muslims. The belief that profiling practices are only going to be targeting “Arab-looking” persons, or more broadly, foreigners, made easier the shift from objection to support of such profiling.
Certainly, the distinction between “us” and “them” is not unique to the sphere of emergency powers. However, crises lead to heightened individual and group consciousnesses. Allegiance to the community and the willingness to sacrifice for its sake receive a higher premium and attention. Stereotyping is often employed both with respect to insiders (emphasizing good, noble, worthy attributes) and outsiders (pointing out contrary traits). Internal conformities within the community are exaggerated, while divergence from “outsiders” is emphasized.
Reliance on the separation between “us” and “them” may, however, prove illusory. With time there may be a redefinition of the boundaries of the relevant groups. Some who are today an integral part of the “us” may find themselves outside the redefined group. Moreover, exceptional emergency measures may be acceptable when premised on the understanding that they will only be exercised outside the boundaries of the “us” group. However, in the rush to avail the group of such measures it is oftentimes the case that no adequate guarantees are installed to ensure that the tide does not turn and that the same mechanisms do not operate inward. That such measures ought to be used solely against outsiders may be so clear to everybody within the community that there seems to be no real need to express explicitly that implicit consensus. Indeed, even if current emergency measures do explicitly refer to foreignness as operative terms for the applicability, for example, of new legal provisions, it may well be that with time such limitations on the scope of the measures will be removed and abandoned, with the measures applying to a larger group than had been originally intended.
Our belief in our ability to separate emergency from normalcy, counterterrorism measures from the ordinary set of legal rules and norms, is misguided and may be very dangerous. David Cole demonstrates the falsity of that approach with respect to maintaining the separation between “us” and “them.” That separation is but one example of the application of the assumption of separation. Like it, other methods of application also fail.
For further analysis of the issues raised in this commentary see Oren Gross, “Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?” Yale Law Journal 112 (forthcoming 2003), and Oren Gross and Fionnuala Ni Aolain, Law in Times of Crisis: Emergency Powers in Comparative and Theoretical Perspectives (Cambridge University Press, forthcoming 2003).
1. Baruch Kimmerling, “Boundaries and Frontiers of the Israeli Control System,” in Baruch Kimmerling, ed., The Israeli State and Society: Boundaries and Frontiers (Albany: SUNY Press, 1989), 265, 266–67.
2. Gerald L. Neuman, “Anomalous Zones,” Stanford Law Review 48 (1996), 1197, 1201.
3. On the concepts of permeable, fragmental, and integral boundaries and distinctions see A. R. Luckham, “A Comparative Typology of Civic Military Relations,” Government and Opposition 6 (1971), 5.
4. Letter of James Madison to Thomas Jefferson, May 13, 1798, quoted in Saul K. Padover, ed., The Complete Madison: His Basic Writings(New York: Harper & Row, 1953), 258.
5. Arthur M. Schlesinger, The Imperial Presidency (Boston: Houghton Mifflin, 1989), ix.
6. James X. Dempsey and David Cole, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (First Amendment Foundation, 2002), 168.