Political safeguards in democracies at war

Oxford Journal of Legal Studies

Volumn 29, Issue 2, 2009, Pages 189-214

  Issacharoff, Samuel ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67149112107     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqp006     Document Type: Article

References (89)

1. 'When Rights Break Down: US Constitutional Responses in Times of National Security Crisis', Astor Lecture, Oxford (8 June 2005). The themes of that lecture were more fully developed in Samuel Issacharoff and Richard H. Pildes, 'Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime' (2004) 5 Theoretical Inquiries 1-45.
2. 343 US 579, 636-8 (1952).
3. Issacharoff and Pildes (n 2).
4. H.L.A. Hart. The Concept of Law (2nd edn OUP, Oxford 1997).
5. Thucydides, History of the Peloponnesian War (Rex Warner (trs)., Penguin Classics, London 1972).
6. Ibid 120 (1.141).
7. Phillip Bobbit. The Shield of Achilles: War, Peace and the Course of History (Knopf, New York 2002) 79-83.
8. Richard Dawkins, 'Sustainability doesn't come naturally: A Darwinian Perspective on Values', Inaugural Lecture of the Values Platform for Sustainability (14 November 2001), available at http://www.environmentfoundation.net/richard-dawkins-lecture.pdf, last visited 22 March 2009.
9. The arguments on this score are well summarized in Paul Starr, 'Dodging a Bullet: Democracy's Gains in Modern War', in Elizabeth Keir and Ronald R Krebs (eds), In War's Wake: International Conflict and the Fate of Liberal Democracy (Basic Books, New York, forthcoming 2009).
10. See Nancy Bermeo, 'What the Globalization Literature Says - Or Doesn't Say - About Postwar Democratization', (2003) 9 Global Governance 159-77 (reporting that more than half the long-term democracies in existence at the turn of the most recent century emerged from war or from postwar reconstruction).
11. See Edward D. Mansfield and Jack Snyder, 'Does War Influence Democratization?', in Keir and Krebs (n 9).
12. See Samuel Huntington, The Third Wave Democratization in the Late Twentieth Century (University of Oklahoma Press, Norman 1991).
13. Dan Reiter and Allan C. Stam, Democracies At War (Princeton University Press, New Jersey 2002).
14. Immanuel Kant, To Perpetual Peace: A Philosophical Sketch (Filiquarian Publishing LLC, Minneapolis 2007) (1795) 14.
15. Sun Tzu, The Art of War (Samuel B. Griffith, (trs), OUP, Oxford 1963) (6th c. B.C.) 64.
16. Edward D. Mansfield and Jack Snyder, Electing to Fight: Why Emerging Democracies Go To War (Belfer Center for Science and International Affairs, Cambridge, MA 2005) 31.
17. Ibid.
18. Paul Starr well captures this point: The ability to wage war without conscription and with so little call for personal sacrifice from the public may reduce the high threshold for starting wars that has been partly responsible for democracies' military success: Starr, (n 9) 17. This makes particularly striking the claim of the Bush Administration that taxes should not be raised to pay for the cost of overseas military actions. If anything, taxes and conscription appear as two mechanisms to ensure that the population understands and approves of the consequences of warfare.
19. Reiter and Stam (n 13) 160.
20. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (W.W. Norton & Company, New York 2007) 187.
21. Peter Read Teachout, 'Worlds Beyond Theory: Toward The Expression Of An Integrative Ethic For Self And Culture', (1985) 83 Mich L Rev 849-93, 859-60 (book review).
22. Bruce Ackerman, 'The Emergency Constitution', 113 Yale LJ 1029-1092, 1046 (2004).
23. John Ferejohn and Pasquale Pasquino, 'The Law of Exception: A Typology of Emergency Powers', (2004) 2 Int'l J Const L 210-239, 226
24. David Bederman, 'The Classical Constitution: Roman Republican Origins of the Habeas Suspension Clause' 18 (Emory Public Law Research Paper No. 08-30, 2008), http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1092422, last visited 22 March 2009.
25. Niccolo Machiavelli, Discourses on Livy (Julia Conaway Bondanella and Peter Bondanella (trs)., OUP, Oxford 2003) (1531) 94.
26. Korematsu v United States, 323 US 214, 246 (1944).
27. See, e.g., Jack Goldsmith and Neal Katyal, 'The Terrorists' Court', NY Times, July 11, 2006. For a strong rejoinder arguing that normal legal procedures are able to address emergency threats,
28. see David Cole and Jules Lobel, Less Free, Less Safe (New Press, New York 2007).
29. French Constitution, art 16.
30. Ferejohn and Pasquino (n 23) 217 n 20.
31. The story, gathered from several sources, is recounted in Anne Appelbaum, 'How Hitler Could Have Won', The New York Rev of Books (25 October 2007) 34.
32. Goldsmith (n 20) 81.
33. Ibid 82-3.
34. Weimar Constitution, available at http://www.zum.de/psm/weimar/ weimar_vve.php, last visited 22 March 2009.
35. Daryl Levinson and Richard H. Pildes, 'Separation of Parties, Not Powers', (2006) 119 Harv L Rev 2311-86, 2368-70 (describing the use of various systems of 'opposition rights').
36. Stephen Holmes The Matador's Cape: America's Reckless Response to Terror (Cambridge University Press, New York 2007) 300-1.
37. House of Commons, Public Administration Committee Report (4 March 2004) available at http://www.parliament.the-stationery-office.com/pa/ cm200304/cmselect/cmpubadm/422/42204.htm, last visited 22 March 2009.
38. House of Lords Select Committee on the Constitution, 'Waging War: Parliament's Role and Responsibility' (15th report of 2005-2006) 42, available at http://www.publications.parliament.uk/pa/ld200506/ldselect/ ldconst/236/236i.pdf, last visited 22 March 2009.
39. Rachel Sylvester and Alice Thomson, 'Backing for Brown plan for MPs to decide war', Mail Online (London), 30 April 2005, , last visited 22 March 2009.
40. Quoted in Paul Starr, 'War and Liberalism', The New Republic (5 March 2007) 21.
41. Starr (n 38) 22.
42. See Ronald R Krebs, Fighting for Rights: Military Service and the Politics of Citizenship (Cornell University Press, Ithaca 2006) 3 ('especially after war, groups seeking first-class citizenship may deploy their military record as a rhetorical device, framing their demands as the just reward for their people's sacrifice').
43. John Keegan, The Second World War (Viking, New York 1989) 22. The phrase is Professor Keegan's.
44. This has been a repeated claim of the Bush Administration since 11 September 2001. John Yoo has been the most well known proponent of the thesis. See, e.g., John Yoo, The Powers of War and Peace (University of Chicago Press, Chicago 2005), 155, 159-60.
45. Machiavelli (n 24) 97.
46. Charles de Secondat Montesquieu, The Spirit of the Laws (Thomas Nugent, trans., Hafner Publishing Company, New York 1970) (1752) 151.
47. This is the daunting challenge put forward by Levinson and Pildes (n 33), who argue that structural separation of powers depend critically on an oppositionist political stance in the legislative branch.
48. See United States House of Representatives, Committee on Government Reform - Minority Staff, Special Investigations Division (Prepared for Rep. Henry A. Waxman), Congressional Oversight of the Bush Administration (Jan. 17, 2006) (outlining lack of Republican congressional oversight on many issues), http://oversight.house.gov/ documents/20060117103554-62297.pdf, last visited 22 March 2009
49. Thomas E. Mann and Norman J. Orenstein, 'When Congress Checks Out', Foreign Affairs, November 2006, http://www.foreignaffairs.org/ 20061101faessay85607/norman-j-ornstein-thomas-e-mann/ when-congress-checks-out.html, last visited 22 March 2009 (describing lack of congressional hearings on, inter alia, the conduct of the Iraq War).
50. Hamdi v Rumsfeld, 542 US 507 (2004).
51. Rasul v Bush, 542 US 466 (2004)
52. Youngstown Sheet and Tube Co. v Sawyer, 343 US 579 (1952).
53. Human Rights Act, 1998, section 4. Until the 1998 Act, there was no basis for any judicial review of an Act of Parliament. Even under the Human Rights Act, a declaration of incompatibility only places Parliament on notice of the clash with what the Law Lords rule to be Britain's constitutional traditions. Parliament remains free to maintain a challenged statute, even in the face of such a declaration of incompatibility.
54. [2004] UKHL 56, [2005] 2 AC 68 (HL) (hereinafter 'The A Case').
55. Ibid 89. 7¶
56. Ibid [8], citing the European Convention on Human Rights, art 5. 1(f).
57. Ibid [9] citing Chahal v United Kingdom, 23 Eur Ct HR 413 (1996).
58. Ibid [11].
59. Ibid [10], citing the European Convention on Human Rights, art 15.
60. The European Convention gives Member States a limited right of 'Derogation in Time of Emergency'. Under art 15 of the Convention, 'In time of war or other public emergency threatening the life of the nation any high contracting party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.' A member state availing itself of the right of derogation must inform the Secretary General of the Council of Europe of the measures it has taken and the reasons for them. It must also tell the Secretary General when the measures have ceased to operate and the provisions of the Convention are again being fully obeyed.
61. [2004] UKHL 56, [2005] 2 AC 68 (HL), [27]-[29].
62. Ibid [29].
63. Ibid.
64. Ibid [43]-[44].
65. Ibid [42].
66. S Ct 2229 (2008).
67. [2004] UKHL 56, [2005] 2 AC 68 (HL), [41] citing Aksoy v Turkey, 23 Eur Ct HR 553 (1996).
68. Ibid [80].
69. Ibid [46], citing 336 US 106, 113 (1949).
70. Ibid [68]. The effect of the ruling of the House of Lords was to force the political branches to re-examine the use of preventative detention. The Blair government sought to empower the Home Secretary to place any suspected terrorist, British or foreign, under house arrest without consulting a judge, but could not overcome political opposition to such a broad measure: 'Prevention of Terrorism Bill: Climb-Down', The Economist (26 February 2005) 21. Ultimately, the effect of the ruling in The A Case was to take the matter of detention outside the bounds of executive action and require an affirmative vote by Parliament to allow house arrest of individuals in response to increased threats to Britain. Prevention of Terrorism Act 2005, s 4(7)(a). Even such a measure would require a vote of Parliament explicitly to derogate from ECHR dictates, and the power to authorize control orders over individuals would require parliamentary re-authorization every year: S 13(1).
71. S Ct 2229 (2008).
72. Fours years earlier, in Rasul v Bush, the Court had ruled that habeas jurisdiction had been statutorily extended to Guantanamo through 28 USC §2241. 542 US 466, 473 (2004). Congress then amended the statute with the Detainee Treatment Act of 2005 (DTA), stripping habeas jurisdiction from the courts and providing that the DC Circuit would have exclusive jurisdiction to review the decisions of the Combatant Status Review Tribunals.
73. After the Court ruled, in Hamdan v Rumsfeld, 548 US 557, 576-7 (2006), that the amended language did not apply to cases pending at the time of the enactment of the DTA, Congress again altered the statute with the Military Commissions Act of 2006 (MCA), in order to make as clear as possible that federal courts were to have no jurisdiction in habeas or any other proceedings pertaining to the detention of aliens determined to be enemy combatants, whether they were pending at the time of enactment or had not yet been initiated. Military Commissions Act of 2006, §7(a),(b). The question whether the Constitution guaranteed them access to the writ of habeas corpus was therefore squarely posed in Boumediene.
74. See, e.g. 128 S Ct 2229, 2246 (stating that the Framers considered the writ a 'vital instrument' for the protection of individual rights).
75. Ibid 2244-6.
76. Ibid 2246.
77. Ibid 2247.
78. Ibid.
79. Paradoxically, eight days after the Court issued Boumediene, the DC Circuit used exactly the procedures at issue to find that the detention of a designated 'enemy combatant' at Guantanamo was improper. Parhat v Gates, 532 F 3d 834 (DC Cir 2008).
80. Boumediene v Bush, 128 S Ct 2229, 2273 (2008).
81. Ibid.
82. I am indebted to Rachel Goodman for this evocative formulation.
83. S Ct 2229, 2277.
84. Adrian Vermeule, 'Holmes on Emergencies' 61 Stan L Rev 163-202 (2008).
85. Ibid 164.
86. Chastleton Corp. v Sinclair, 264 US 543, 547 (1924).
87. Vermeule (n 80) 191.
88. S Ct 2749 (2006).
89. Ibid 2799 (Kennedy J., concurring).