LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE
by Oren Gross and Fionnuala Ní Aoláin. Cambridge: Cambridge University Press, 2006. 516pp. Hardback. £55.00/ $100.00. ISBN: 9780521833516. Paper. £27.99/ $52.00. ISBN: 9780521541237.
Reviewed by Therese O’Donnell, Law School, Strathclyde University. Email: therese.odonnell [at] strath.ac.uk.
“How to allow government sufficient discretion, flexibility, and powers to meet crises while maintaining limitations and control over governmental actions so as to prevent or at least minimize the danger that such powers would be abused? . . . How to balance security and liberty? These questions are as ancient as the Roman republic and as new as the realities wrought by the terrorist attacks on London’s public transportation system on July 7 and July 21, 2005.” (pp.1-2)
And so begins Oren Gross’ and Fionnuala Ní Aoláin’s impressive, richly sourced study of the responses of democratic states to violent emergencies. The book’s structure divides principally into two parts. The focus of Part I is upon the principal models dominating theory and practice concerning responses to acute national crises. Part II considers the relationship between international law and some of its specific legal regimes (e.g. international humanitarian law whereby non-state actors may be held accountable). The structure works well and any overlaps in content are unobtrusive. As Gross and Ní Aoláin comment, violent crises often precipitate a reaction urging that “legal niceties may be cast aside as luxuries to be enjoyed only in times of peace and tranquility” (p.7).
Part I opens with an analysis of the various models of accommodation by which a state may seek to manage a crisis. By acknowledging some element of accommodation, the State is best depicted as a tree bending in a storm; how far it yields will depend on which model it chooses to adopt. The main models posited by Gross and Ní Aoláin are those embodying classical accommodation, constitutional accommodation, legislative accommodation and interpretative accommodation. The assessment of the Roman model of dictatorship is fascinating, particularly when the authors consider Machiavelli’s conclusion that one of the crucial checks and balances in place was the innate incorruptibility of the citizens of Rome (comparing favourably to their Florentine counterparts) (p.24). As the authors note, Lord Acton focuses on absolute power’s impact on the ruler, while Machiavelli focused on the people. This is interesting, but to this cynical reader, a little precarious. The perfect example of the Roman model operating in practice is offered by way of Cincinnatus who, after enjoying awesome power during a siege and winning a significant victory, resigned as dictator. Such self-restraint on the hand of Power ensured his entry into the annals of history. Although not quite on the same scale (and with important distinctions), one cannot help but be reminded of the Leader of the House, [*509] Robin Cook’s, resignation speech on the eve of Operation Iraqi Freedom in 2003. Some time later he enjoyed recounting how a tramp recognised him as a famous resignation saying ‘You . . . you’re great when you resign. You should do it more often’ (Chalmers 2005). It is worth remembering that he was the former UK Foreign Secretary and proudly recalled his role as a significant engineer of the NATO intervention in Kosovo.
The sheer flexibility of models of accommodation seems well captured in the discussion of the French state siege model. Originally intended to confront a military crisis, it morphed into ensnaring political crises. The impotence of the various attempts to rein in the ever-expanding use of the siege concept was finally captured in Article 13 of the French Constitution of 1946 which stingingly stated “The National Assembly alone may vote the laws. It may not delegate this right.” The possibility of constitutional accommodation of emergencies is also explored with a discussion of Lowenstein’s consideration of whether the concept of militant democracy can avoid the dangers of constitutional measures operating as Trojan horses. Gross and Ní Aoláin present an extensive survey of state constitutions, thus, as they acknowledge, revealing problems in the classification and categorization of emergencies and the dangers inherent in creating “scales” of emergencies which may permit states to easily “upgrade” to higher levels with presumably more draconian consequences (pp.45-46). The issue of “necessity” operating as a constitutional principle, making legal what might otherwise be illegal or unconstitutional, and its embodiment in inherent executive powers is considered. The authors include extracts from the infamous Frost/Nixon interview (suggesting unlimited Presidential power) alongside Justice O’Connor’s cautioning from HAMDI v. RUMSFELD that a state of war does not provide a “blank check” for a President. Such ordering of content seems pithy indeed, although even they themselves seem concerned about the actual reality of the Presidential trump (pp.52-54). In terms of legislative accommodation of emergencies including the passing of specialized legislation, the authors make reference to the “piling up” (p.69) of legislation and the craving of governments to be seen to be doing something – anything. They note legislative complicity in such an enterprise, in particular drawing on the example of the massive UK Anti-Terrorism, Crime & Security Act 2001 (ATCSA) which traversed the House of Commons in sixteen hours. Regarding interpretative accommodation, the authors conclude that international and regional courts are no more stringent when judging governmental discretion than the light touch of which domestic courts are accused (p.79). The danger of the various models is well illustrated by the fact that, as this chapter comes to a close, the authors return to Rome. For every Cincinnatus there was a Gaius Julius Caesar who ruled under a republican model of dictatorship in name only. Gross and Ní Aoláin also foreshadow the more modern nightmare which haunts most democracies – that of Weimar and its infamous constitutional Article 48. It went from operating as a [*510] crucial check on the powers of the president to simply acting as a rubber stamp, thus embedding no genuine sense of constitutionalism in Germany – a situation that proved ripe for the Nazis (p.85).
While Chapter 1 considers the models embodying strategies of accommodation, Chapter 2 considers the “Business as Usual” model, characterized as a strategy of resistance (p.98). It reminds one of an aristocrat who refuses to accept that any change in the face of a crisis is necessary. While such detachment can remain reassuringly solid and have its attractions, its Achilles heel is the perception of unreality or even blatant hypocrisy. It denies the need for any emergency powers, maintaining that the ordinary legal system is sufficient to meet the needs of the crisis. Gross and Ní Aoláin observe that in the more hardcore version of this model, substantive outcomes also do not change in times of emergency (p.89). Indeed the historical sources which are drawn upon, notably Benjamin Constant reflecting on French experience after the Revolution, go so far as to suggest that only intellectual pygmies seeking to save a state not worth saving cry out for emergency measures (p.87). Much attention is given to the US Supreme case of EX PARTE MILLIGAN 71 US (4 Wall.) 2 (1866) and in particular Justice Davis’ famous majority opinion which stresses the role of the constitution as a fixed and unchanging balance between individual liberty and governmental power. However, the authors acknowledge that MILLIGAN was decided after the civil war when it was “safe” to be bold in relation to the operation of power – when it came to be tested as precedent the Supreme Court declined to follow MILLIGAN’s lead (pp.96-97). Given the model’s perceived weakness of unreality, it may be countered that even a mythical model can be worth preserving for its symbolic and educational functions. By not seeking empirical truth, it remains immune from assessment for its (in)correctness (pp.102-103). As such, it may be symbolically powerful in countering an almost inevitable overreaction in the face of crisis.
As Gross and Ní Aoláin note, the similarity between the Business as Usual model and the models of accommodation, lies in their both being rooted in a sense of being constitutional, a point not popular with realists. A more acceptable model to realists is considered in Chapter 3. The Extra-Legal Measures model focuses on an honest executive acknowledging that it has moved toward “illegality,” which it then seeks to purify by way of ex post facto ratification. Here the authors are discussing the Shakespearean possibility of a “little wrong” for a “great right” (p.112). They consider Jewish law’s acknowledging that the Torah may be violated in order to preserve it. An amputation motif seems intrinsic to this reasoning, yet whereas that creates indisputable and permanent change, any violation is envisaged as existing only temporarily. Locke’s work is also analysed, particularly prescient given its influence on the Founding Fathers. The authors consider the ethic of responsibility (drawing on both Weber and Walzer) whereby the public official who acts illegally takes a gamble about [*511] her actions and must throw herself upon the mercy of some arbiters at a later stage to seek ex post ratification of her illegal act. As the authors note, a moral politician in such a situation simply openly admits that her hands are dirty (p.134). The often subtle ways that such ex post facto judgments will be carried out is well illustrated by the authors’ invocation of the social ostracism befalling “Bomber” Harris – denied a peerage which the other commanders received (p.139). Yet for every Cicero who gambles and saves Rome there lurks a dark side of this model which is, as the authors acknowledge, that it potentially enables totalitarianism or even encourages a habit of lawlessness, which goes more broadly than government (pp.143-145). Nevertheless, the Extra-Legal Measures model endeavours to protect the ordinary legal system by operating as a form of quarantine for the emergency and the consequent measures taken. However, as the authors note, this attempt at prevention depends on normalcy and separation being cleanly separated (p.162), and it is indeed hard to accept that no osmosis occurs.
In the final chapter of Part I, the authors focus on this very assumption of separation. The authors are clear that all of the models of crisis management rely on notions of a supposedly clinical, scientifically provable, measurable, assessable separation between times of crisis and “normalcy.” That such a separation-process will facilitate a firewall which protects human rights and civil liberties may well be very optimistic. Indeed Warbrick has noted that what starts as particularly pejoratively titled “terrorism legislation” slowly becomes applicable to wider groups, seeping through to the regular, non-particular, non-emergency situation (Warbrick 2002). Of course, certain legal options may exist which may facilitate separation in time or type. Temporary legislation with sunset clauses is one option. However, by offering the particular example of the US PATRIOT Act, the authors show how quickly this can become the “new normality and benchmark” with sudden permanence (pp.177-179). Another possibility is to create a geographical distinction between a location of normality and one of crisis – a tactic used by the British in relation to the Northern Ireland emergency. Gross and Ní Aoláin point to the specific example of the curtailment of the right to silence, which began by targeting suspected terrorists in 1988 and by 1994 was ready to be applied to the rest of the UK.
The authors present a very interesting analysis of the legislative measures invoked to deal with the Algerian/French emergency, and they note how this resonates with irony. For a “mother country” obsessed with retaining her colony, perceived as less civilized than she, by casting off a variety of constitutional and legal traditions, she became as much part of Algeria as Algeria was part of France (p.200). That the same emergency legislation was resurrected to deal with the grandchildren of immigrants more than fifty years later who were rioting in the banlieues simply makes the irony supreme. The authors also refer to the “torture by proxy” process by which States use a geographical prophylactic to [*512] permit the use of evidence obtained by torture in which their officials did not perpetrate. In the A case ( UKHL 71), the UK Court of Appeal ruled that such evidence could be used, but the decision was mercifully reversed by the House of Lords. That victory was slightly tempered, however, by the split among the speeches as to the standards for assessing whether the evidence had been so obtained.
In terms of domestic differences with attendant legal distinctions, Gross and Ní Aoláin consider the “them and us” phenomenon. Certain groups, often foreigners, are assessed as outsiders and regulated accordingly. Post-9/11 this has become a major legal battleground as witnessed very clearly in the UK in the House of Lords decision in the Belmarsh case ( UKHL 56), where the operation of the ATCSA Part IV was denounced as operating in a racially discriminatory fashion. As well as being normatively problematic, the authors note the shock which gripped Britain (presumably excluding the activists who had so opposed Part IV) when the 7/7 bombers were identified as British born (p.224). In drawing on the work of David Cole, the authors note the shifting sands of the them/us distinction (pp.226-227), and one cannot help but be reminded of Pastor Niemöller’s poetry in this regard.
Perhaps one of the most potent motifs running throughout this book is that associated with addiction – paranoia, dreams and ever increasing dosages. It is in relation to this last aspect that the authors comment on the “normalization of the exception.” A craving develops for new, more radical powers to fight impending crises, and the unthinkable develops into the thinkable with a consequent “tranquilizing effect on the public’s critical approach toward emergency regimes” (p.236), and thus to hidden revolution (p.242). As the authors later note, despite the common understanding of the word “emergency” as sudden, urgent and unforeseen, numerous examples testify to systematic entrenchment of the exception as the norm (p.304).
Part II focuses on the application of the various models in the field of international human rights law, with the authors concluding that there is a gap between theory and practice of emergency powers in international law. In considering the issue of legislative accommodation, they focus on the State’s power to derogate from certain rights in an emergency. Of course, as they acknowledge, this has raised problems in the context of the ICCPR and the UN Human Rights Committee, and the apparent failure to “join up the dots” between the declaration and operation of a derogation and States’ reporting obligations (p.301) (see McGoldrick 1994). The authors are concerned that the required process of proclaiming a state of emergency, given its entirely formal and insubstantial nature, may actually serve as basis for a disingenuous State resort to crisis powers (p.260). As the authors correctly note, most international oversight of the use of emergency powers focuses on ajudging the due process consequences of State responses, rather than the preliminary point of whether there is in fact an emergency (the ECHR [*513] LAWLESS decision afforded it less than two pages). Obviously this might be due to such tribunals lacking fact-finding capacity and the concerns regarding an “explosive situation” (p.267), which as a value judgment apparently goes to the very heart of a state’s decision-making autonomy.
Although acknowledging the importance of the supervision which does occur, the authors consider that the question of whether the resort to emergency powers is justified should come to greater prominence. They are concerned that what appears as robust judicial rhetoric conceals weakness ultimately legitimating governmental narrative – see the IRELAND v UK case (pp.273, 277). They are also concerned about the leeway which international oversight affords to democratic states compared with non-democratic states, and their comparison of the ECtHR responses to the UK and Turkey are interesting in this regard. Gross and Ní Aoláin are more flattering regarding the jurisprudence of the Inter-American Court (which is assisted by the fact-finding capacity of the Inter-American Commission), which they see as adopting a more subtle and deep approach, by recognizing an infinite variety of “crises,” thus at least having the potential to bring that preliminary question closer to the forefront (p.291).
Gross and Ní Aoláin are also disappointed by findings of various celebrated studies on emergencies and their authors’ seeming lack of understanding of how the aberrational nature of emergencies becomes normalized. Consequently, they are blind to the concept of the “permanent emergency,” focusing instead on the nature of measures adopted during such emergencies. Gross and Ní Aoláin continually stress that the notion of a standardized model for emergencies is neither helpful nor borne out by any study of states in emergencies (pp.316-317) and suggest that a “permanent emergency” may not belong in the human rights framework at all, but should be analysed in a debate regarding the problem creating the crisis (p.322). The formal process of state derogation should not be a game played between states and international overseers by which the latter provides the former with a shield against other external critics such as NGOs.
In the final chapter, the authors consider terrorism, emergencies and international responses to contemporary threats. They analyze whether the phenomenon of terrorism goes beyond existing domestic and international regimes, concluding that a more sophisticated derogation system and greater accountability for permanent and complex emergencies would be ideal (p.380). One of the striking things about this section is that the authors notably indicate differences in their respective positions, notably on the issue of torture warrants, perhaps emphasizing how contested the “law and terrorism” terrain is. In analyzing the interface between terrorism and law, particularly post 9/11, the authors are attracted to the relevancy of international humanitarian law, in particular Common Article 3 of the Geneva Conventions regulating internal armed conflict. They identify one benefit of this approach as being its capacity to leave aspects of [*514] human rights law intact (p.391). Gross and Ní Aoláin provide interesting discussion of the hybrid “super-laws” emerging at an international level, which they are concerned permit nefarious regimes to accomplish anti-democratic domestic goals – a point which has been the subject of widespread concern in the human rights community. 9/11 and its birthing of these super-laws (including the demands of UN Security Council Resolution 1373) may challenge the accommodation models’ capacities to constrain state action.
The book is part of the Cambridge Studies in International and Comparative Law series which has been notable for producing extremely high quality scholarship. Most recent examples including Karen Knop’s DIVERSITY AND SELF-DETERMINATION IN INTERNATIONAL LAW and Gerry Simpson’s GREAT POWERS AND OUTLAW STATES, both of which, like this volume, were awarded accolades from the American Society of International Law. This book rightfully takes its place as an important and novel addition to discussions regarding law’s response to crises.
There are a number of images which constantly pervade the book’s content either explicitly or implicitly. References to seepage, soaking, the water’s edge, osmosis, equilibrium, permeability, incontinence and precipitation all highlight the very fluid nature between normality and emergency, terror and calm which the authors seek to emphasise. Similarly the medical terminology of quarantine, immunity and amputation is evident particularly in the discussion of the fiction of separation between normalcy and emergency. But it is the last group of images created by the constant motifs of addiction, narcotics, phantoms, dreams, sunsets, hazes and, particularly, twilights which gives the reader most pause for thought. And concern.
Chalmers, Robert. 2005. “Out of the Wilderness.” THE INDEPENDENT ON SUNDAY (January 30th, 2005).
Knop, Karen C. 2002. DIVERSITY AND SELF-DETERMINATION IN INTERNATIONAL LAW. Cambridge: Cambridge University Press.
McGoldrick, Dominic. 1994. HUMAN RIGHTS COMMITTEE : ITS ROLE IN THE DEVELOPMENT OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS. Oxford: Clarendon.
Simpson, Gerry. 2004. GREAT POWERS AND OUTLAW STATES: UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER. Cambridge: Cambridge University Press.
Warbrick, Colin. 2002. “The Principles of the European Convention on Human Rights and the Response of States to Terrorism.” 3 EUROPEAN HUMAN RIGHTS LAW REVIEW 287. [*515]
A & OTHERS v SECRETARY OF STATE FOR THE HOME DEPARTMENT  UKHL 71.
A & OTHERS v. SEC OF STATE FOR THE HOME DEPT. AND X & OTHERS v. SEC OF STATE FOR THE HOME DEPT  UKHL 56
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
IRELAND v. UK (1979-80) 2 EHRR 25.
EX PARTE MILLIGAN, 71 US (4 Wall.) 2 (1866).
© Copyright 2007 by the author, Therese O’Donnell.
Labels: Vol. 17 No.6