Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism: Emergency Powers in an Age of Terrorism [Hardcover]

This is a pretty good book for people concerned about possible deterioration of American civil liberties in the event of further successful 9/11-type attacks. It is almost impossible to amend the U.S. Constitution. So Ackerman proposes laws that could be enacted by Congress and states that would help do this. It should be read in conjunction with Richard Posner's Catastrophe, which makes a case for some curtailment of civil liberties, given the dangers of the age we live in.

As the author says, this is a downer of a book. It attempts to use the National Emergencies Act of 1976 along with other constitutional and legal features of the U.S. system to propose a three-stage model of declarations of temporary states of emergency. The writing is somewhat crisp and vernacular, as if the heavy law parts were simplified, although it has teeth in some parts without being legalistic. Readers expecting detailed legal analysis will be disappointed. It's written at a low level. The best parts are the last two chapters which apply the book's ideas to a devastating attack scenario on Washington D.C.

Ackerman's argument is straightforward. Future large scale terrorist attacks are probably going to happen, but happen infrequently. The problem after an attack is the uncertainty about immediate follow-on attacks; if terrorists successfully planned and executed one attack, they may have more in progress. Ackerman fears that in the rush to prevent attacks the President and the administrative organs will accumulate too much power and destroy our liberty. Worse, Presidents will be tempted to claim the country is at war, giving them even more power.

Ackerman advocates a temporary state of emergency which the president may declare of his own authority. The declaration would have a built-in sunset provision, with only congress capable of reauthorizing. Reauthorization would require an escalating supermajority; the longer the emergency persisted the smaller a minority of legislators needed to end it. The declaration would permit broad powers of arrest and detention after an attack. Such measures would presumably mitigate the risk of further attacks, as well as re-establish national sovereignty.

The book is thought provoking and worth reading, but there are problems with Ackerman's ideas. He assumes that the most pressing need in the immediate aftermath of an attack will be to reassure the public that measures are being taken to prevent further attacks. Reassuring the public is a concern, but I think it overextends a factor unique to 9/11. The actual attacks on 9/11 and the time needed to restore order was short. Aside from those stuck because of the airspace shutdown, most people were back to normal within a few days. The system disruptions were minimal.

Such a short event period is unlikely in future large scale terrorist attacks. Dirty or nuclear bombs, chemical or biological weapons will involve much greater disruptions for a longer period of time. The event will look more like Katrina then 9/11. Massive social breakdown, no police or fire services, looting, confusion over evacuation destinations and means of transportation, these problems will last for weeks if not months. Plus, any response will be hamstrung by the need to protect responders from the contaminant (radiation, virus, chemical residue on skin or clothing). So at the time Ackerman thinks feds will be rounding up thousands of suspected terrorists most national systems will likely be overwhelmed just coping the direct aftermath of the attack.

An even bigger problem is with Ackerman's assumption that terrorist attacks will be infrequent. This implies that the administration is capable of effectively stopping most attacks. If it fails to do so, wouldn't that initiate further restrictions of liberty which Ackerman fears? Put another way, if terrorists successfully execute an attack under existing laws, it implies those laws are inadequate to prevent terrorism. Cheap information flow implies the holes or flaws in the law will be exploited with increasing frequency until they are closed, and they will be exploited again if the holes are allowed to reopen. Closing those holes necessarily entails restrictions of liberties we now enjoy. This dynamic is I think the core of the problem, not the short term emergency response but the long term incremental battle between terrorists and the law. The state of emergency concept is flawed because it assumes temporary measures can have long term preventative effects.

In a sense this book was aimed too much at 9/11. That event featured an improbable combination of mass casualties through primarily conventional means, with no subsequent attacks for a period of several years. Future attacks are unlikely to follow this pattern. That said, it is a starting point for dealing with the reality that in the current system terrorism encourages a dictatorial presidency, and terrorism isn't going away. Framers of the Constitution sought systematic ways of preventing tyranny from taking root, but they did not envision mass casualty terrorism. We owe it to them and to our children to further their work.