by David Dyzenhaus (ed). Farnham, Surrey: Ashgate, 2009. 490pp. Hardback. $275.00/£135.00 ISBN: 9780754627340.
Reviewed by Therese O’Donnell, Law School, Strathclyde University. Email: therese.odonnell [at] strath.ac.uk.
At some dim and distant point in the future, someone younger will no doubt pose to you the question “What was it like in the old days?” Your answer will very much depend on your point of view. When the young interrogator questions you, you may even feel the need to consult sources for reassurance of your mental acuity. Upon checking, what will be particularly striking is how much you have forgotten and how quickly you had forgotten it. It is with this in mind that I will be selecting a special point on my bookcase for this collection. Even if my memory is imperiled, it will remain my aide memoire in recalling the range and diversity of approaches which raged across a decade which began so inauspiciously with the September 11th attacks.
The title is part of Ashgate’s International Library of Essays on Rights, and it complements the existing series which has focused on a variety of specific areas such as disability, genocide and social rights. As Tom Campbell, the general series editor, notes, the series volumes intend to make available the most important and enduring essays on particular topics. Authors are selected for their eminence in the fields of law, politics and philosophy. Undoubtedly the pieces selected have drawn from prominent thinkers and writers working in the field of civil rights and security. However, initially I had been somewhat surprised not to see some work from Oren Gross and Fionnuala Ní Aoláin specifically excerpted, notably the prize-winning LAW IN TIMES OF CRISIS. However, their work is extensively referenced by the selected authors, and indeed Dyzenhaus makes specific reference to Gross’ work in the introduction and so no oversight occurs. The book is divided into three parts concerning the image of balance, institutional models (looking at emergency constitutions) and civilising security.
In part I of the book which considers the “image of balance” Jeremy Waldron’s early and landmark piece questions the value of this image when applied to security and liberty. This is an excellent piece with which to open the collection as it pitches the reader directly into the key issues which consumed lawyers and policy makers post-9/11. That is, the eternal oscillation between the apparently opposite poles of hawkish counterterrorism policy and civil rights. Waldron considers just how much balancing takes place and unpacks other binaries, such as communities versus individuals/minorities (a few/most differential). He clarifies that his project is not to settle arguments but to demand more detailed scrutiny during so-called balancing exercises. He also notes that there may be simple public reassurance that something, anything, is being done in a time of perceived crisis. The [*194] “reassurance rationale” is a conceptual foundation for Bruce Ackerman’s emergency constitutional measures, discussed subsequently. However, for Waldron, reassurance’s deterrent effect, its effectiveness in actually enhancing safety and finally, its value as a moral argument is entirely questionable (pp.21-22). Waldron’s piece is followed by Eric A. Posner and Adrian Vermeule’s chapter which embraces the very binary, the tradeoff thesis, which Waldron challenges as useful or attractive. Considering that emergencies may release polities from sclerotic equilibriums which paralyse enfeebled executives (p.64) they particularly target the civil libertarianism evident in the public letter sent by 700 law professors in December 2001 criticizing an executive order establishing rules for military tribunals in terrorism cases (p.52). They confront the obvious “Weimar anxieties” which arise from their embracing of Carl Schmitt on the basis that the US and its ilk lack Weimar’s fragility (p.47). Perhaps Weimar did not think it was Weimar either. Being an early chapter in their book TERROR IN THE BALANCE, this was the clearest example of the collection inspiring readers to pursue the bigger work.
Part II on institutional models divides into three sections concerning the emergency constitution and strong and weak constitutionalism. The most obvious direct confrontation among the authors comes in the section devoted to the emergency constitution where Bruce Ackerman and David Cole debate the value of Ackerman’s “supermajoritarian escalator.” In an attempt to forestall permanent emergencies, Ackerman would require early legislative approval for the declaration of a state of emergency. This would then be periodically renewed, with increased requirements for its continued existence, presumably as the ‘white heat’ dissipated. Sharing of security intelligence with legislative committees would also be required. In relation to the judiciary, Ackerman proffers two constraining principles: antinormalization (judicial standards are set at a lower level during an emergency) and antiobstruction (the judiciary should not consume or divert excessive bureaucratic energy from beleaguered security services). The judiciary’s role is limited to, for example, rejecting any presidential attempts to prolong a state of emergency in the face of congressional opposition, and guaranteeing rights to detainees. Ackerman believes this allows for clearer apportionment of responsibility for wrong decisions – security service mistakes do not become conflated with judicial interventions and appear as bad precedents (pp.100-102). Indeed those wrongly preventively detained would be paid compensation, clearly delineating the roles of the judiciary and executive. This relies on post facto remedying which might be cold comfort to those enduring the hardship. Ackerman is correct that whatever post-9/11 was, it was not a war, and he cautions about the dangers of war-talk (p.80). However, his turn away from a politics of war, prompts his turn to a politics of emergency, and despite his faith in constitutional modelling, it seems quite a hostage to fortune.
David Cole unpacks Ackerman’s model and notes his assumption that all emergency powers (preventive detention, surveillance, data mining, [*195] restrictions on financing) could be subject to the same regulatory model. He questions such a “magic bullet” (p.119). Considering the history of preventive detention, Cole identifies post-9/11 instances as taking their place in a “dubious pantheon” (p.117) and doubts the curative value of compensation for suspicionless detention (p.119). Ackerman maintains (in a helpful postscript) that he does not advocate such suspicionless detention, simply that the evidentiary basis be less substantial than is normally required. However, divining that line, and holding it, requires fine, possibly unattainable, calibration. Ackerman reiterates the need for reassuring the public that the situation is under control and that short-term measures are being taken to prevent a “second strike” (p.86). Cole queries precisely who is being reassured and, echoing Waldron, concludes that in gazing upon the disempowered minorities “such reassurance is a fiction paid for by innocents” (p.120). As editor David Dyzenhaus notes in his introduction, the reader is left asking whether, if Cole is right, we simply turn to a “business-as-usual model” as favoured by civil libertarians or more worryingly something that only resembles it (p.xvii).
Only one article is excerpted for the “weak constitutionalism” section and that is Cass Sunstein’s piece which favours a judicially minimalist approach to intrusions on freedom during “war.” This demands a narrow, slow and steady approach which focuses upon the very particular question at issue and considers cases one at a time. Sunstein takes the reader on a case law odyssey and claims his minimalist approach arises in surprising places (p.208). Minimalism avoids the maximalist tendency towards large-scale theory about the foundations of constitutional law (pp.166-167). It takes the separation of powers doctrine very seriously and is self-conscious about the shortcomings of courts (p.171). Nevertheless, in Sunstein’s view, minimalism can result in “Due Process Writ Large” (pp.172-173), providing certain safeguards exist. Judicial self-discipline is self-evidently necessary for minimalism, and judicial oversight of deprivations of liberty due process would seem a balancing sine qua non. His final requirement of congressional authorisation before the executive intrudes on interests with “strong claims to constitutional protection” (pp.171-172) is less easy to pin down, and as he himself notes, the situation can become more complex when involving the President’s inherent authority.
Within the section on “Strong Constitutionalism,” Lucia Zedner has produced a very interesting piece which applies criminal justice modeling to counter-terrorism. Suspected terrorists are not beyond criminal law after all. She acknowledges that this might be subject to the perils of “balancing,” but in favouring a principled approach she hopes to “lower the pitch of the debate” (p.232). As Zedner notes, as early as the 1980s, criminological research revealed the shortcomings of attempting to predict “dangerousness,” and she highlights the imponderables that ought to act as restraints upon rights-restricting initiatives (pp.236-237). As well as noting dangers regarding “presumptive offenders” (p.238), Zedner draws on Gross’ and Ní Aoláin’s concerns regarding the seepage effect into the mainstream of so-called “extraordinary” [*196] measures. Despite legislative sunset clauses, powers can be repeated into de facto permanency (pp.249, 254). By clearly identifying notions of “prepunishment,” pre-emptive punitive action against those “predeserving” of punishment (p.247), Zedner highlights the dangers of extraordinary measures. In his comparative study between Canada and Britain, Kent Roach advocates a proportionality analysis which will encourage smart counter-terrorism strategies. He encourages thinking outside the box, something he considers Lord Carlile, the UK’s independent reviewer of terrorism legislation, to have failed to do in his acceptance of offences which restrict free expression (pp.289-291) and extensions to periods of preventive detention (pp.308-309). The UK’s “executive-based risk management” (p.336), as evident in the use of control orders, is the subject of Clive Walker’s extensive and thorough article. Despite such measures being called “conviction lite” (p.368), he is curious as to whether it is possible to maintain constitutionalism when dealing with a non-criminal justice mechanism. Walker considers the alternative, and ostensibly less intrusive option of intercept evidence, noting the Home Office’s dismissive attitude towards it, citing that prosecutions have rarely relied upon it (p.367). As he says, the line of argument has thus switched from the sensitivity of the evidence-gathering methodologies to the value of their product, yet it is surely up to prosecutors and courts to make judgments on value and strength (pp.367-368). Lord Carlile fares slightly better in Walker’s analysis although he still sees opportunities for the review process to “press hard on some of the more radical issues” (p.382). Acknowledging that there is no miraculous third way (p.397) but equally anxious regarding the implications of control orders for constitutionalism, Walker, echoing Zedner, favours the criminal justice response as carrying an important “moral platform of legitimacy and fairness” (p.399).
The section on strong constitutionalism concludes with Neal Katyal’s article regarding the equal protection of law and the problems raised by discrimination against aliens. Citing equality’s prominence in US law, Katyal is animated by who is affected by the legal framework (p.404) and the importance of symmetrical rights between citizens and non-citizens. His particular point of criticism is the use of military commissions only for foreigners. Katyal considers it indefensible that American citizens should have enjoyed a “Cadillac” version of justice in a civil trial in a federal court, whereas green card holders got the “beat up Chevy” of a military commission at Guantanamo (p.407). He considers that insisting on evenhandedness might be more appropriate than trying to freeze substantive standards into the Constitution (p.406). It might also be more attractive to a judiciary which can be hesitant in more substantive cases (pp.417-418). Katyal also believes that the guarantee of equal protection enables deference to government decisionmaking, because its equal reach renders it more likely to be fair and to be seen as such by the courts (p.419). Although Katyal acknowledges that there is always some political accountability when a legislature deprives aliens of their rights, he believes it precarious to rely on an uber-empathetic voting population sensitive [*197] enough to vote regarding policies which do not affect their lives (p.423). Better to have laws that apply equally to all.
The focus of Part III is upon “Civilizing Security” and includes contributions from Klaus Günther and Ian Loader. Günther’s piece concludes that the security state is the flipside of the market state with transnational security law the flipside of a deregulated society. He is intrigued by the development of, and rationale for, a transnational security architecture and its capacity to dissolve traditional legal categories which preserve freedom. Günther is concerned that the global multi-option society which ordains the right to choice and consumption is proclaimed as the authentic, modern interpretation of the Kantian ideal of a cosmopolitan citizenship of humanity (p.444). Yet, from an internal perspective, that constituent part of this society, the market state, feels it must fortify itself against, for example, illegal immigrants as “unauthorised gatecrashers” seeking entry to the space of security and freedom. This seems quite beyond anything Kant imagined.
Loader’s piece is a fitting conclusion to the collection in the way that it references Waldron’s opening piece on balance, and in its criminological approach reminds the reader of Zedner. Loader extends an invitation to pursue a new course which interrogates the cultural lives of security and rights and in so doing, rescue security from the security lobby (pp.448-449). He draws on five examples of populist reason, such as “If you’ve got nothing to hide, you’ve got nothing to fear,” and “you wouldn’t think that if you lived round here” (pp.451, 454), the incantation of which acts as a security trump prevailing over apparently remote, more liberal, rights-focussed groups (p.450). The security trope is seductive, and it captures hearts and minds in the way that rights discourse seems not to. Yet ironically notions of rights are built into the solidarity-security rhetoric which regularly proclaims itself to be defending a particular way of life (p.457). When security is invoked in an “emergency” by a sovereign power, citizens are asked by leaders “Shall we do something or nothing in the face of this terror?” implying an unconditional response. To this end, Loader sees a strand of English sentiment that seeks solace in the omnipotent Leviathan (p.458). He even gently puts in doubt the existence of an English human rights culture – do human rights represent a castle built on sand? Rather than describing bleakness, Loader seems to be urging an acknowledgement of the current shortcomings in human rights discourse, which in turn might prompt a more fruitful re-advancement of human rights “within a solidaristic and egalitarian practice of security” (p.462). He wants to civilize security.
This volume does well to bring together such nuanced and sometimes competing perspectives on civil rights and security. It will be of value to those working in the related fields of law, philosophy, politics, sociology and criminology. The collection is akin to a top-line sampler of key works in this complex area, and due to the care which has clearly gone into the selection process, and the thoughtful introduction from David Dyzenhaus, readers will find it extremely thought-provoking. For those of us who have written, reflected and railed at how law has responded to events post-9/11, there [*198] is a risk of becoming jaded. It is a credit to this volume that after reading it, one cannot but feel passionately interested in this complex area – it is a lesson in re-invigoration.
Gross, Oren, and Fionnuala Ní Aoláin. 2006. LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE. Cambridge: Cambridge University Press.
Posner, Eric A., and Adrian Vermeule. 2007. TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS. New York: Oxford University Press.
© Copyright 2010 by the author, Therese O’Donnell.