Terrorism law between the executive and legislative models

American Journal of Comparative Law

Volumn 57, Issue 4, 2009, Pages 877-896

  Barak Erez, Daphne ^a,b  

^a STANFORD LAW SCHOOL   (United States)

^b Stewart and Judy Colton Chair of Law and Security   (United States)

Author keywords

[No Author keywords available]

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EID: 72449170638     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.5131/ajcl.2008.0028     Document Type: Article

References (101)

1. Exec. Order No. 13, 493, 74 Fed. Reg. 4901 (Jan. 22, 2009) : Review of Detention Policy Options.
2. Exec. Order No. 13, 492, 74 Fed. Reg. 4897 (Jan. 22, 2009) : Review and Disposition of Individuals Detained At the Guantánamo Bay Naval Base and Closure of Detention Facilities.
3. Exec. Order No. 13, 491, 74 Fed. Reg. 4893 (Jan. 22, 2009) : Ensuring Lawful Interrogations.
4. Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57831 (Nov. 16, 2001).
5. Liversidge v. Anderson, [1942] A. C. 206.
6. Rasul v. Bush, 542 U. S. 466 (2004).
7. Boumediene v. Bush, 127 S. Ct. 1478 (2007).
8. See Bruce Ackerman, The Emergency Constitution, 113 Yale L. J. 1029, 1041 (2004).
9. An example of an analysis focusing on the institutional aspects of anti-terrorism law is the work of Bruce Ackerman, id. Ackerman, however, concentrates on the American constitutional context, whereas the current article aims to evaluate the meaning of institutional choices in this area with reference to other systems as well.
10. This is a different terminology than that proposed by Ferejohn and Pasquino, which regards anti-terrorism measures as reflecting the legislative model when they are based on authorizing legislation, even when the relevant legislation only offers special authorizations to the executive.
11. See John Ferejohn & Pasquale Pasquino, The Law of the Exception: A Typology of Emergency Powers, 2 I. Con: Int'l J. Const. L. 210, 217 (2004) ("The legislative model handles emergencies by enacting ordinary statutes that delegate special and temporary powers to the executive"). In contrast, this Article refers to broad statutory authorization to the executive as another form of the executive model. Thus, the current typology does not center on the formal source of power but rather on the question whether the basic normative choices are made by the legislature or by the executive.
12. Hence, it should be distinguished from a willingness to accept the possibility of executive actions beyond the rule of law.
13. See Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional, 112 Yale L. J. 1011 (2003).
14. Secret services tend to use physical measures in interrogations although, formally, the existing legislation in Western countries does not allow this. These practices are not part of the executive model of terrorism law but rather a direct challenge to the rule of law. A separate debate in this regard is whether, in extreme circumstances, it is better to legalize torture and subject it to judicial review, as Alan Dershowitz argues, or to prefer an absolute ban on torture with the assumption that officials will disobey it in extreme cases.
15. See Alan M. Dershowitz, The Torture Warrant: A Response to Professor Strauss, 48 N. Y. L. Sch. L. Rev. 275 (2003-04) ;
16. Oren Gross, Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481 (2004).
17. See The Executive and Public Law: Power and Accountability in Comparative Perspective (Paul Craig & Adam Tomkins eds., 2006) ;
18. Symposium, The Most Dangerous Branch? Mayors, Governors, Presidents, and the Rule of Law: A Symposium on Executive Power, 115 Yale L. J. 2218 (2006).
19. Such as, among others, the practice of administrative detentions introduced by the Civil Authorities (Special Powers) Act (Northern Ireland), 1922.
20. When the British confronted resistance against their rule in Palestine, they legislated a detailed anti-terrorism law-The Defence (Emergency) Regulations, 1945, 1442 PG (Supp. No. 2) 1055-which are still in force in Israel (although amended). The Israeli example is particularly interesting due to the high intensity of terrorist threats that Israel has encountered over the years. Soon after the establishment of Israel in 1948, the Prevention of Terrorism Ordinance, No. 33 of 5708-1948, 1 LSI 76 (1948) (Isr.) was enacted.
21. At a later stage, the old regime of administrative detentions based on the Defence Regulations was replaced by the Emergency Powers (Detention) Law, 5739-1979, 33 LSI 89 (1978-79) (Isr.).
22. The most famous U. S. legislation in this regard is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (hereinafter USA PATRIOT Act), enacted after September 11, 2001.
23. Another important example is the Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified at 50 U. S. C.) (FISA) discussed later. Accordingly, it is not argued here that the United States is endorsing only the executive model, but rather that it is willing to accept it with regard to some anti-terrorism measures.
24. The enactment of the Military Commissions Act of 2006, Pub L. No. 109-366, 120 Stat. 2600 (2006) discussed later, did not change this reality because it focused on the trials of enemy combatants and not on their detention as such.
25. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952).
26. For a symposium on presidential powers in the context of emergency and terrorism
27. see 81 Ind. L. J. 1139 (2006).
28. Ex parte Quirin, 317 U. S. 1 (1942).
29. Hirabayashi v. United States, 320 U. S. 81 (1943) ;
30. Korematsu v. United States, 323 U. S. 214 (1944).
31. See supra note 4.
32. See Cass R. Sunstein, Administrative Law Goes to War, 118 Harv. L. Rev. 2663, 2671 (2005).
33. The original executive order of the president in this matter was signed on February 19, 1942 (Exec. Order No. 9066, 7 Fed. Reg. 1407 (Feb. 25, 1942)). The order purported to authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. Legislation on this matter followed a month later, on March 21, 1942. The wording of the law was: whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5, 000 or to imprisonment for not more than one year, or both, for each offense. (Act of Mar. 21, 1942, Pub. L. No. 77-503, ch. 191, 56 Stat. 173, repealed by Act of June 25, 1948, Pub. L. No. 80-772, ch. 645, § 21, 62 Stat. 683, 868).
34. Issacharoff and Pildes have argued that the U. S. Supreme Court had based its protection of liberties in times of emergency on the process-based requirement of bicameralism and, accordingly, was willing to accept harsh executive measures supported by the legislature. See Samuel Issacharoff & Richard H. Pildes, Emergency Contexts Without Emergency Powers: The United States' Constitutional Approach to Rights During Wartime, 2 I. Con: Int'l J. Const. L. 296 (2004). They have admitted, however, that one of the limitations of this approach is that the so-called supporting legislation was very broad
35. (id. at 327). For this reason, this Article does not give much weight to legislative support of this sort.
36. Pub. L. No. 107-40, 115 Stat. 224 (2001). According to Section 2 (a) : the 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.
37. Hamdi v. Rumsfeld, 542 U. S. 507 (2004).
38. Justice O'Connor wrote: There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the Al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.
39. Id. at 592.
40. According to Bradley and Goldsmith, this should apply not only to those captured in the battlefield but also to those who cooperate with Al-Qaeda.
41. See Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2120 (2005) ("The plurality limited this holding to a U. S. citizen captured on a traditional foreign battlefield. The logic of its interpretation of the AUMF, however, applies to enemy combatants captured in the United States as well").
42. Hamdi case, supra note 27, at 591.
43. "We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF" (id.).
44. For an interpretation of the AUMF different from the one presented by Bradley and Goldsmith (supra note 29)
45. see Sunstein, supra note 23.
46. The possibility of executive action based on the AUMF was discussed regarding interception of international telephone and Internet communications by the National Security Agency outside the scheme of the Foreign Intelligence Surveillance Act of 1978 (supra note 16) and without judicial warrants. The application of the AUMF for surveillance purposes as well was rejected by Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan, who held that this operation also violates the First and Fourth Amendments.
47. See American Civil Liberties Union v. National Security Agency, 438 F. Supp. 2d 754 (E. D. Mich. 2006).
48. See Ackerman, supra note 8, at 1047-49.
49. See id. at 1050-53.
50. This does not mean that there is no legislation on enforcement issues (an obvious example is the Foreign Intelligence Surveillance Act of 1978 already mentioned, supra note 16), but rather that the insistence on legislation tends to be higher with regard to criminal justice.
51. This is the case in Britain, Canada, Israel, and the United States. Kent Roach criticizes the Canadian legislature's refraining from addressing this issue.
52. See Kent Roach, September 11: Consequences for Canada 73-74 (2003). At present, Canadian law includes express legislation against profiling only in the context of detention powers during declared emergencies.
53. See Emergencies Act, 1988 S. C., Ch. 29, § 4 (Can.).
54. R (on the application of Gillan (FC) (Appellants)) v. Comm'r of Police for the Metropolis (Respondents) [2006] UKHL 12, [2006] 2 A. C. 307 (U. K.).
55. Terrorism Act, 2000, c. 11, § 44 (U. K.).
56. See The Torture Papers: The Road to Abu Ghraib (Karen J. Greenberg & Joshua L. Dratel eds., 2005).
57. Comm'n of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, Report (1987).
58. Excerpts from the Report were translated into English and published in 23 Isr. L. Rev. 146 (1989). For a critical analysis of the Landau Commission Report
59. see Mordechai Kremnitzer, The Landau Commission Report - Was the Security Service Subordinated to the Law, or the Law to the "Needs" of the Security Service?, 23 Isr. L. Rev. 216 (1989).
60. HCJ 5100/94 Public Committee Against Torture in Israel v. Government of Israel [1999] IsrSC 53 (4) 817. For an analysis of this decision
61. see Mordechai Kremnitzer & Re'em Segev, The Legality of Interrogational Torture: A Question of Proper Authorization or a Substantive Moral Issue?, 34 Isr. L. Rev. 509 (2000).
62. S. H. 1832.
63. A v. Sec'y of State for the Home Department (No. 2), [2005] UKHL 711, [2006] 2 A. C. 221.
64. Pub. L. No. 109-48, 119 Stat. 2739 (2005).
65. Id., § 1002.
66. Id., § 1003.
67. Anti-Terrorism, Crime and Security Act, 2001, c. 24, part 4 (U. K.).
68. A v. Sec'y of State for the Home Department, [2004] UKHL 56, [2005] 2 A. C. 68 (U. K.).
69. This decision led to another legislative reform: the British Parliament enacted the Prevention of Terrorism Act, 2005, c. 2, which empowers the Home Secretary to issue a "control order" against an individual, which will specify and impose a range of obligations upon him (as a weaker substitute to detention). This new model was reviewed and interpreted by the House of Lords in a series of cases-Sec'y of State for the Home Department v. JJ, [2007] UKHL 45, [2007] 3 W. L. R 642;
70. Sec'y of State for the Home Department v. MB, [2007] UKHL 46, [2007] 3 W. L. R 681;
71. Sec'y of State for the Home Department v. E, [2007] UKHL 47, [2007] 3 W. L. R 720;
72. AF and Others v. Sec'y of State for the Home Department [2009] UKHL 28 (June 10, 2009) ;
73. Clive Walker, Keeping Control of Terrorists Without Losing Control of Constitutionalism, 59 Stan. L. Rev. 1395.
74. The current Israeli law on administrative detentions is the Emergency Powers (Detention) Law, mentioned supra note 15. The legislation on the detention of combatants of terrorist organizations is the Incarceration of Unlawful Combatants Law, 5752-2002, S. H. 192. The Israeli Supreme Court dismissed a petition against the constitutionality of this law in CrimA 6659/06 Anonymous v. Israel (June 11, 2008), available at http://elyonl.court.gov. il/eng/home/index.html.
75. Hamdan v. Rumsfeld, 165 L. Ed. 2nd 723 (2006).
76. See supra notes 27-31 and accompanying text.
77. Id., at 757.
78. Id., at 780.
79. See supra note 17.
80. Section 6 of the Military Commissions Act states: [A]s provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.
81. The precedent of the Israeli Supreme Court stating the conditions for the use of this policy is HCJ 769/02 The Public Committee Against Torture in Israel v. Government of Israel (Dec. 14, 2006), available at http://elyonl.court.gov. il/eng/home/index.html.
82. See The Torture Papers: The Road to Abu Ghraib, supra note 40.
83. See supra note 33.
84. See also David Cole & Martin S. Lederman, The National Security Agency's Domestic Spying Program: Framing the Debate, 81 Ind. L. J. 1355 (2006).
85. Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, supra note 4, § 4.
86. In fact, the government did everything possible to prevent any kind of judicial review of this initiative. It argued against habeas corpus proceedings based on various grounds, including the location of the detention camp outside the territory of the United States (in Guantanamo Bay) (an argument that was finally rejected by the Supreme Court only after more than two years in which no judicial review had been available.
87. See Rasul, supra note 6) as well as formalities such as the identity of the official against whom the habeas corpus writ was requested (the Supreme Court was willing to accept this formal argument when the habeas corpus proceedings were directed against Donald Rumsfeld rather than against the commander responsible for the place of detention.
88. See Rumsfeld v. Padilla, 542 U. S. 426 (2004)).
89. Sec Boumediene, supra note 7. An opposite example for a legislative tradition of introducing detention regulation with a mechanism of judicial review as part and parcel of the legislative scheme can be brought from Israel. The Israeli law on administrative detention states that a person arrested according to an order of the minister of defense has to be brought before a judge within forty-eight hours (section 4 (a) of the Israeli Emergency Powers (Detention) Law, 1979, mentioned supra note 15). If the order is approved, the decision to maintain it has to be reviewed at least once every three months, and the authorities bear the duty of initiating the process of judicial review (section 5 of the same law). Similarly, according to the Israeli Incarceration of Unlawful Combatants Law, a prisoner must be brought before a judge no later than fourteen days after issuing the incarceration order (section 5 (a) of this law (mentioned supra note 51), with a further duty to bring the continuation of the order to the court once every six months (section 5 (c) of the same law).
90. As already noted, the House of Lords had practiced judicial review over a law which purported to authorize an unlimited detention of suspected terrorists who are not British nationals (
91. see A v. Sec'y of State for the Home Department, supra note 49). The U. S. Supreme Court had invalidated the law which purported to completely bar the possibility of habeas corpus relief from Guantanamo detainees (
92. see Boumediene, supra note 7).
93. Real sunset clauses, which mandate additional legislation to prolong anti-terrorism statutes, are different from provisions that require only an executive decision for their renewal. For this distinction
94. see House of Lords and House of Commons, Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention (24th Report of Session 2005-06), paras. 165-66 (2006).
95. American writers have pointed at the lack of real checks and balances when the President and the majority dominant in the legislative branch come from the same party.
96. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006) ;
97. Mark Tushnet, Controlling Executive Power in the War on Terrorism, 118 Harv. L. Rev. 2673, 2679 (2005). In addition, at least with regard to the use of force in the international domain, it was pointed out that the recourse for congressional authorization is often used for spreading political costs and does not lead to any substantial debate.
98. See Jide Nzelibe, Are Congressionally Authorized Wars Perverse?, 59 Stan. L. Rev. 907 (2007).
99. This power was originally enacted as part of the Anti-terrorism, Crime and Security Act, 2001 (supra note 48).
100. See A v. Sec'y of State for the Home Department, supra note 49.
101. See, for example, section 11 (1) of the British Terrorism Act, 2000 (supra note 39), which states: "A person commits an offence if he belongs or professes to belong to a proscribed organization. "