State of Emergency


Before the Next Attack Preserving Civil Liberties in the Age of Terrorism Bruce Ackerman Yale University Press, $26, 240 pp. ______________________________________________________ Yale law professor and constitutional theorist Bruce Ackerman is known as a tireless advocate of civil liberties, vocal in his unsparing critique of the Bush administration’s terrorism policies and the Supreme Court’s recent terrorism-related decisions. In Before the Next Attack he raises a vexing question: What sort of constitutional response to terror might address its uniquely destructive and destabilizing threats-including its disruption of normal legal categories-while respecting and protecting our liberties? His answer is a provocative idea: declaration of a temporary state of emergency, with its continuation dependent upon what he calls a “supermajoritarian escalator,” or periodic renewal by the approval of a series of increasingly large congressional majorities. Before the Next Attack spends a lot of time assessing the threat we face today, carefully defining what it is-and what it isn’t. Ackerman insists we are not engaged in a “war on terror,” a concept he considers “preposterous.” Where terrorism is “a technique of intentional attacks on innocent civilians,” he argues, real wars threaten destruction or occupation of entire sovereign states. As much damage as they can do (including wiping out a major city...

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