Emergency lawmaking after 9/11 and 7/7

University of Chicago Law Review

Volumn 75, Issue 3, 2008, Pages 1155-1190

  Vermeule, Adrian ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 57049158137     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (116)

1. By a "rational legislature," I mean one that updates its risk assessments as the evidence warrants (given whatever evidence it is cost-justified to acquire) and that delegates new power to the executive accordingly.
2. See Philippe Aghion, Alberto Alesina, and Francesco Trebbi, Endogenous Political Institutions, 119 Q J Econ 565, 594 (2004) (providing a model in which crisis, including wars and other emergencies, increases the optimal degree of insulation of the government from public accountability and reduces the optimal number of checks and balances).
3. I define "emergency lawmaking" as the enactment of antiterrorism statutes within one year of a major terrorist attack. Although this definition is partially arbitrary in that the public sense of emergency will persist for shorter or longer duration under varying conditions, a temporal restriction of some sort is warranted by the tendency of emergencies to dissipate over time as uncertainty diminishes and emotions decay. A more accurate definition is neither possible nor necessary for my purposes here.
4. Authorization for Use of Military Force, Pub L No 10740,115 Stat 224 (2001), codified at 50 USC § 1541 note (Supp 2002). The AUMF was not signed by the President until September 18,2001. It is distinct from the AUMF enacted in October 2002 to authorize the second Iraq war. See Authorization for Use of Military Force against Iraq Resolution of 2002, Pub L No 107-243, 116 Stat 1498, codified at 50 USC § 1541 note (Supp 2002).
5. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("Patriot Act"), Pub L No 107-56, 115 Stat 272.
6. Terrorism Act 2006, ch 11 (UK).
7. At the time, the House was controlled by Republicans and the Senate was controlled (though barely) by Democrats. For the general significance of divided government in a separation of powers system, see Daryl J. Levinson and Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv L Rev 2311, 2315 (2006) ("The practical distinction between party-divided and party-unified government rivals in significance, and often dominates, the constitutional distinction between the branches in predicting and explaining interbranch political dynamics.").
8. For a somewhat similar claim about legislation after environmental disasters, see Matthew E. Kahn, Environmental Disasters as Risk Regulation Catalysts?: The Role of Bhopal, Chernobyl, Exxon Valdez, Love Canal, and Three Mile Island in Shaping U.S. Environmental Law, 35 J Risk & Uncertainty 17, 19 (2007). Kahn's counterintuitive finding is that individual legislators were less likely to vote in favor of bills proposed after, and tied to, highly salient environmental disasters, in part because the bills under consideration were apparently extreme.
9. The substantive claim is defended in Eric A. Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts 4-5 (Oxford 2007).
10. The best treatments of the circumstances surrounding the passage of the AUMF are Curtis A. Bradley and Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv L Rev 2047 (2005),
11. and David Abramowitz, The President, the Congress, and Use of Force: Legal and Political Considerations in Authorizing Use of Force against International Terrorism, 43 Harv Intl L J 71 (2002).
12. Draft Joint Resolution to Authorize the Use of United States Armed Forces against Those Responsible for the Recent Attacks Lunched [sic] against the United States, submitted to the Senate on Sept 12, 2001, quoted in 147 Cong Rec S 9949 (Oct 1, 2001) (emphasis added).
13. See Karl K. Schonberg, Global Security and Legal Restraint: Reconsidering War Powers after September 11, 119 Polit Sci Q 115, 117 (2004).
14. The rejection is clear; the bipartisan basis is implied by Abramowitz. See Abramowitz, 43 Harv Intl L J at 73-74 (cited in note 10) (observing that Congress, one house of which was controlled by Republicans, came to a consensus to restrict the President's plan to only those responsible for 9/11).
15. Id at 73.
16. Id at 74.
17. In the final version, the operative section of the AUMF states: [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. AUMF § 2(a), 115 Stat at 224.
18. See Abramowitz, 43 Harv Intl L J at 76 (cited in note 10) (describing how provisions referencing the War Powers Resolution were adopted but more specific limitations were not).
19. See id at 75 (describing how, although inserting "abroad" was suggested, it was not inserted).
20. See Tom Daschle, Power We Didn't Grant, Wash Post A21 (Dec 23, 2005) (reporting that Senate leaders rejected the addition suggested by the White House minutes before voting on the bill).
21. Abramowitz, 43 Harv Intl L J at 74 n 8 (cited in note 10) (emphasis added).
22. See generally, for example, Beryl A. Howell, Seven Weeks: The Making of the USA PATRIOT Act, 72 Geo Wash L Rev 1145 (2004) (detailing the chronology of the Patriot Act's passage and some of the political compromises that shaped its final form);
23. Bernard D. Reams, Jr. and Christopher T. Anglim, 1 USA PATRIOT Act: A Legislative History of the Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, Public Law No. 107-56 (Hein 2002) (presenting, in a five-volume set, the Patriot Act and the legislative history and debate that led to its passage).
24. The provisions were due to lapse on December 31, 2005. After several extensions by Congress to allow time for political bargaining, the provisions were slightly modified to accommodate some civil libertarian concerns (although by no means all); most were made permanent, although two were reenacted with a new sunset that will expire in 2009. See Brian T. Yeh and Charles Doyle, USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis (Congressional Research Service, Dec 21, 2006), online at http://www.fas.org/ sgp/crs/intel/RL33332.pdf (visited June 8, 2008).
25. See Howell, 72 Geo Wash L Rev at 1161-62 (cited in note 21) (explaining that despite Administration efforts to pass the bill as quickly as possible, bipartisan objections from both the House and Senate Judiciary Committees forced a delay of the markup).
26. Id at 1178-79.
27. Id at 1204. See also Patriot Act § 412.
28. See Terrorism Bill, 439 Pari Deb, HC (6th ser) 351 (2005) (David Davis) (contending that the opposition parties supported the government).
29. See Nigel Morris, Leak Shows Clarke's Unease over Plan to Detain Suspects, The Independent (Sept 16, 2005), online at http://www.independent. co.uk/news/uk/crime/leak-shows-clarkes-unease-over-plan-to-detain-suspects- 507032.html (visited June 8, 2008).
30. See James Ball, After the Bombs: The Key Political Events that Followed the London Bombings, Guardian Unlimited (July 4, 2006), online at http://www.guardian.co.uk/attackonlondon/story/0,,1812299,00.html (visited June 8, 2008). For the final mens rea requirement, see Terrorism Act 2006, ch 11, pt I, § 1 (2)(b) (UK).
31. George Jones, Blair's Blackest Day: MPs Reject 90-Day Terror Detention: PM Suffers First Commons Defeat, Daily Telegraph 1 (Nov 10, 2005) (recounting that forty-nine Labour MPs voted against Blair on the ninety-day detention period, helping inflict the first defeat of his eight-year premiership).
32. More recently, Prime Minister Blair's successor, Gordon Brown, has proposed extending the twenty-eight-day maximum to forty-two days. It is unclear whether the proposal will succeed. See Terror Detention Plans Unveiled, BBC News (Jan 24, 2008), online at http://news.bbc.co.uk/2/hi/uk-news/politics/ 7205939.stm (visited June 8, 2008).
33. Although I do not develop the comparison here, it is striking that in the 2006 Military Commissions Act, a nonemergency statute, the Bush Administration ended up obtaining almost everything that it proposed, while in the emergency episodes it did not. This might support the hypothesis that the Administration did better overall when the forces that constrain the executive in emergency lawmaking had ceased to operate. Nevertheless, there are two alternative hypothes- es as well: (1) In the former episode, the Administration might have simply asked for less because nonemergency circumstances are a less favorable environment in which to press for the maximum. (2) By 2006, the Administration's credibility was in tatters, so the comparison does not shed light on the effects of emergency and nonemergency conditions holding the executive's credibility constant. Even if (2) is correct, the Administration's lack of credibility was itself at least partly a product of its tendency to overclaim and overpress in the episodes I shall discuss below, although the Iraq War was no doubt the largest factor.
34. 147 Cong Rec H 5649 (Sept 14, 2001) (Rep Spratt) (emphasis added).
35. Here I am eliding a possible distinction between "urgency" and "impatience," proposed by Jon Elster, in which the former refers to preference for immediate action over delayed action, and the latter to a preference for immediate reward over delayed reward. See Jon Elster, Explaining Social Behavior 154-55 (Cambridge 2007). I use "urgency" to cover both phenomena, which as far as I can tell were largely coextensive in the cases I draw upon here.
36. See Abhinay Muthoo, Bargaining Theory with Applications 51-55 (Cambridge 1999) (arguing that because the less patient player places greater value on present action, the less patient player has greater costs of haggling-each successive counteroffer further lengthens the time before that benefit is received-which lead to decreased bargaining power).
37. Robert O'Harrow Jr., Six Weeks in Autumn: A Year Ago, as a Nation Reeled from Attack, a Battle Was Joined for America's Future. Not in Afghanistan. In Washington, Wash Post W6 (Oct 27, 2002) (emphasis added).
38. For a particularly clear statement of this view, see Ilya Somin, Systematic Shortcomings of Broad Executive Power in Times of Crisis, Volokh Conspiracy (Aug 23, 2007), online at http://www.volokh.com/posts/ 1187914017.shtml (visited June 8, 2008) (comparing presidential tenure of four or eight years with Supreme Court tenure of twenty-six years on average and potentially very lengthy congressional tenure).
39. See Elster, Social Behavior at 77 (cited in note 33).
40. See, for example, Florette Cohen, et al, American Roulette: The Effect of Reminders of Death on Support for George W. Bush in the 2004 Presidential Election, 5 Analyses Soc Issues & Pub Policy 177, 178 (2005) (finding that a majority of study participants "in a psychologically benign state" supported Senator John Kerry but a majority favored Bush after "a subtle reminder of death").
41. See Jeff Greenberg, et al, Terror Management and Tolerance: Does Mortality Salience Always Intensify Negative Reactions to Others Who Threaten One's Worldview?, 63 J Personality & Soc Psych 212, 215 (1992).
42. See id at 218 (finding that, although mortality salience increased disapproval of a dissimilar trait, it did not increase disapproval of a dissimilar other).
43. See Tom Pyszczynski, et al, Mortality Salience, Martyrdom, and Military Might: The Great Satan versus the Axis of Evil, 32 Personality & Soc Psych Bull 525, 532-33 (2006).
44. I elaborate on this claim in Adrian Vermeule, Libertarian Panics, 36 Rutgers L J 871, 873-74 (2005).
45. Electronic Frontier Foundation, DOJ's Anti-terrorism Bill Would Dismantle Civil Liberties (Sept 19, 2001), online at http://www.eff.org/ Censorship/Terrorism-militias/20010919-eff-wiretap-pr.html (visited June 8, 2008).
46. O'Harrow, Six Weeks in Autumn, Wash Post at W6 (cited in note 35) (reporting that Laura Murphy, Director of the ACLU's Washington Legislative Office, made those remarks about the large turnout from various groups, including libertarian groups, immigration rights groups, and privacy groups, at the ACLU's Washington Office the Friday after 9/11 for a strategy session on protecting individual freedom and privacy).
47. See id (discussing the ten-point statement, entitled "In Defense of Freedom"). The ten-point statement along with lists of signatories, including more than 150 organizations, 300 law professors, and 40 computer scientists, is available online at http://www.indefenseoffreedom.org (visited June 8,2008).
48. See Kam C. Wong, The Making of the USA PATRIOT Act I: The Legislative Process and Dynamics 29-32 (Berkeley Electronic Press Working Paper No 793, 2005) (explaining that the House Judiciary Committee held a "briefing" for civil liberties groups while the ATA was under consideration).
49. For evidence of libertarian panic after the Patriot Act's passage, see Vermeule, 36 Rutgers L J at 880-83 (cited in note 42).
50. See Sunstein, Worst-case Scenarios at 54-60 (cited in note †).
51. See Fergal F. Davis, Extra-constitutionalism, the Human Rights Act and the "Labour Rebels":Applying Prof Tushnet's Theories in the UK, A Web J Current Legal Issues (2006), online at http://webjcli.ncl.ac.uk/2006/ issue4/davis4.html (visited June 8, 2008) (contending that "rebellion" is necessary to control the executive, which necessarily has a majority in Parliament).
52. Reams and Anglim, 1 USA PATRIOT Act at xl, xlvii (cited in note 21).
53. O'Harrow, Six Weeks in Autumn, Wash Post at W6 (cited in note 35).
54. Reams and Anglim, 1 USA PATRIOT Act at xlvi (cited in note 21).
55. Howell, 72 Geo Wash L Rev at 1172-73 (cited in note 21).
56. See Wong, Making of the USA PATRIOT Act at 31-32 (cited in note 46) (describing that Representative Sensenbrenner had a provision removed from the original ATA draft before allowing it to proceed because Attorney General John Ashcroft had not been cooperative enough).
57. I thus disagree with Tushnet, 3 Intl J L in Context at 278 n 18 (cited in note †) ("[W]e can expect that party discipline on issues of emergency powers will be reasonably strong at the outset of an emergency period but will decay as the emergency period stretches out."). To the contrary, at the beginning of the emergency, legislators float above partisanship on a cloud of solidarity; as the emotion decays, they maintain the pretense of doing so; later still, there is a return to partisan business as usual.
58. For examples of this class of argument, see O'Harrow, Six Weeks in Autumn, Wash Post at W6 (cited in note 35) (quoting Senator Patrick Leahy, "We do not want the terrorists to win by having basic protections taken away from us.");
59. Peter Quayle, The Law of War Is a Hindrance, Not a Help, in Fighting Terrorism, Times (London) 4 (Sept 6, 2005) (quoting Lord Hoffmann, "The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws like these.").
60. See Ball, After the Bombs, Guardian Unlimited (cited in note 28) (quoting government and opposition officials on July 7 and July 19, 2005);
61. In Quotes: Government on Terror Plans, BBC News (Nov 8, 2005), online at http://news.bbc.co.uk/2/hi/uk-news/politics/4416846.stm (visited June 8, 2008) (quoting government officials on July 26, 2005).
62. O'Harrow, Six Weeks in Autumn, Wash Post at W6 (cited in note 35) (describing the closed-door battle over electronic eavesdropping).
63. See Howell, 72 Geo Wash L Rev at 1158 (cited in note 21) (describing statements of unity by both parties shortly before a "highly partisan offensive").
64. See 439 Pari Deb, HC at 375 (cited in note 26) (John Denham) ("The cross-party approach that was rightly struck in July is now self-evidently in tatters, with hon. Members being urged to vote for party advantage.").
65. Ben Russell and Nigel Morris, The Debate: The Terror Bill: MPs Berate Clarke for Refusing to Compromise on 90 Days, Independent 4 (Nov 10, 2005) (describing Home Secretary Clarke's defense of his policies).
66. Bayesians believe that genuine uncertainty does not exist; subjective assignments of probability are always present, explicitly or implicitly.
67. Of course, some subjective probability can always be attached to any outcome or can be elicited by the experimenter; the question is whether those probabilities have any epistemic standing. For example, Cass Sunstein points out that subjective probabilities can be elicited from his dog. See Sunstein, Worst-case Scenarios at 160 (cited in note †). Moreover, subjective probabilities vary with the procedure used to elicit them.
68. See Graham Loomes and Judith Mehta, The Sensitivity of Subjective Probability to Time and Elicitation Method, 34 J Risk & Uncertainty 201, 203 (2007) (finding that type of event, elicitation method, and temporal scope of the event all change test subjects' subjective probabilities even for those subjects who have the ability to cope with objective probabilities well).
69. Daniel Gross, Capitalism vs. Terrorism: More and More American Companies Are Buying Terrorism Insurance Uh-Oh., Slate (June 5, 2007), online at http://www.slate.com/id/2167685 (visited June 8, 2008) (describing how predictions cannot be made without more actuarial data points).
70. See R. Duncan Luce and Howard Raiffa, Games and Decisions: Introduction and Critical Surveys 278-80 (Wiley 1957) (describing the maximin criterion for resolving decision problems under uncertainty, where there is a known utility payoff for each outcome, although the probability that a given outcome will materialize is unknown).
71. For a review of formal approaches to decisionmaking under both uncertainty and ignorance, see David Kelsey and John Quiggin, Theories of Choice under Ignorance and Uncertainty, 6 J Econ Surv 133 (1992). I believe that decisionmaking under ignorance is, by the very nature of the subject, best approached from the bottom up, through case studies of actual decisionmaking, rather than from the top down, through axiomatic approaches.
72. See Blair: World Slept after 9/11, CNN (July 26, 2005), online at http://www.cnn.com/2005/WORLD/europe/07/26/london.politicians/index.html?iref= newssearch (visited June 8, 2008).
73. See, for example, 147 Cong Rec E 1679 (Sept 20, 2001) (Rep Maloney) (quoting President Franklin Roosevelt's speech from the day after Pearl Harbor).
74. 147 Cong Rec H 5633 (Sept 14, 2001) (Rep DeFazio).
75. See, for example, Iain MacWhirter, We Must Save Our Greatest Contribution to Civilisation, Herald (Glasgow) 14 (Nov 9, 2005) (referring to lessons Conservatives learned from internment in Northern Ireland).
76. See, for example, Tommy Sheridan, We'll Wake Up Soon in Blair's Police State, Mirror 29 (Nov 10, 2005).
77. See Cass R. Sunstein and Edna Ullmann-Margalit, Second-order Decisions, 110 Ethics 5, 7 (1999) (defining second-order decisions as "decisions about the appropriate strategy for reducing the problems associated with making a first-order decision").
78. Or so it is argued in Posner and Vermeule, Terror in the Balance at 5 (cited in note 9).
79. See Mark Tushnet, Issues of Method in Analyzing the Policy Response to Emergencies, 56 Stan L Rev 1581, 1589 (2004) (claiming that emergencies alter the constraints on political actors, allowing them to pursue their preexisting policy preferences).
80. I assume here that the different senses of security and of liberty can be compressed into a single-dimensional measure. Not only is this a standard simplification, but in these cases it does no violence to the descriptions of the policy problem offered by the legislators and other actors who were involved.
81. Thanks to Dan Meltzer for supplying this example.
82. See Amos Tversky and Itamar Simonson, Context-dependent Preferences, 39 Mgmt Sci 1179, 1183 (1993);
83. Itamar Simonson and Amos Tversky, Choice in Context: Tradeoff Contrast and Extremeness Aversion, 29 J Marketing Rsrch 281, 290 (1992).
84. See Mollie W. Marti and Roselle L. Wissler, Be Careful What You Ask for: The Effect of Anchors on Personal Injury Damages Awards, 6 J Experimental Psych: Applied 91, 95-96 (2000).
85. Id at 91.
86. For example, when a plaintiff sued a dry cleaner for $54 million for ruining a pair of pants, the case made the newspapers, and the plaintiff became a figure of fun. See Suevon Lee, Dry Cleaner Calls $54 Million Lawsuit over Pants a "Nightmare," NY Times A25 (June 14, 2007). As further example of the ridicule this case generated in legal circles, a total of fourteen posts concerning this lawsuit were posted in the legal tabloid blog, Above the Law.
87. See, for example, David Lat, Judge Roy Pearson: What a Prince, Above the Law (Aug 8, 2007), online at http://www.abovethelaw.com/2007/06/judge- roy-pearson-what-a-prince.php (visited June 8, 2008).
88. For the role of counter-anchoring in Supreme Court litigation, see Neal K. Katyal, Comment, Hamdan v. Rumsfeld,- The Legal Academy Goes to Practice, 120 Harv L Rev 65, 73-76 (2006).
89. Marti and Wissler, 6 J Experimental Psych: Applied at 91 (cited in note 78).
90. Id at 98 (explaining that rebutting with a large figure or with $0 did not significantly reduce awards compared to not rebutting but that introducing a low figure did).
91. Abramowitz, 43 Harv Intl L J at 74 (cited in note 10).
92. Howell, 72 Geo Wash L Rev at 1179 (cited in note 21).
93. See 439 Pari Deb, HC at 357 (cited in note 26) (David Winnick).
94. See Terrorism Bill, 438 Pari Deb, HC (6th ser) 932 (2005) (William Cash).
95. See 439 Pari Deb, HC at 347 (cited in note 26) (David Davis) ("After all, even 14 days is a damaging experience for someone who is innocent, so 90 days is an enormously damaging experience that could wreck lives, ruin jobs and destroy relationships"); 438 Pari Deb, HC at 928 (cited in note 87) (Emily Thornberry) ("What concerns me deeply is the possibility that some scared, innocent Muslim teenager will be arrested on the say-so of someone else and a police officer's hunch, and locked up for 90 days.").
96. 439 Pari Deb, HC at 355 (cited in note 26) (David Davis).
97. See, for example, Katyal, Comment, 120 Harv L Rev at 73-76 (cited in note 81).
98. See Jack Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration 157-62 (Norton 2007) (describing the aftermath of the leak to the press of the interrogation memos in the wake of the Abu Ghraib scandal and the resulting loss of credibility for the Bush Administration).
99. The extent of the Administration's loss of credibility is seen in the following conspiracy theory about Attorney General Ashcroft's motives: Before it was leaked to the Center for Public Integrity, a bill dubbed the Patriot Act II was in development at the Justice Department. The draft would have allowed for the stripping of American citizenship and the secret detention of citizens; and popular conjecture had it that Attorney General John Ashcroft was just waiting for another terror attack to roll the bill out. In that moment of national panic, a malleable Congress wouldn't resist. Robyn E. Blumner, From Tommy Franks, a Doomsday Scenario, St Petersburg Times (Fla) IP (Dec 7, 2003).
100. 439 Pari Deb, HC at 349 (cited in note 26) (David Davis) ("The question before the House is this: have Ministers made a robust, convincing and evidence-based case for 90 days?").
101. Id at 337 (Home Secretary Charles Clarke) (quoting Deputy Assistant Commissioner Peter Clarke).
102. Id at 353 (Michael Jabez Foster).
103. Id at 354 (David Davis).
104. Id at 353.
105. Id at 348 (Ian Lucas) (emphasis added).
106. Id at 338 (Kenneth Clarke).
107. See id at 357 (Jeremy Corbyn).
108. Id (David Winnick) (emphasis added).
109. Id at 358 (Shona McIsaac).
110. Neil A. Lewis, A Nation Challenged: The Senate Hearing; Ashcroft Defends Antiterror Plan; Says Criticism May Aid U.S. Foes, NY Times Al (Dec 7, 2001).
111. See Matthew Tempest, Blair Defiant as Pressure Mounts, Guardian Unlimited (Nov 10, 2005), online at http://politics.guardian.co.uk/terrorism/ story/0,15935,1639636,00.html (visited June 8, 2008).
112. See Sky News / YouGov Survey Results, YouGov (Nov 4-5, 2005), online at http://www.yougov.com/uk/archives/pdf/DBD050101009-1.pdf (visited June 8, 2008).
113. See YouGov Poll Biased Questions on 90 Days Detention without Charge, Spy Blog (Nov 7, 2005), online at http://p10.hostingprod.com/ @spyblog.org.uk/blog/2005/11/yougov-poll-biased-questions-o.html (visited June 8, 2008) (attacking the poll questions as biased and vague).
114. See Point-by-Point: Terror Debate, BBC News (Nov 9, 2005), online at http://news.bbc.co.uk/2/hi/uk-news/politics/4421518.stm (visited June 8, 2008).
115. See Aghion, Alesina, and Trebbi, 119 Q J Econ at 594 (cited in note 2).
116. See Posner and Vermeule, Terror in the Balance at 5 (cited in note 9) (arguing on welfarist grounds for broad deference to the executive by the legislative and judicial branches during emergencies).