Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime
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Description
Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes, and to reinterpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in ‘‘normal’’ times. This has been true for France during its experience with Middle Eastern terrorism in the 1980s; for Germany during its encounter with the domestic terrorism of the Baader-Meinhof gang in the 1970s; for Great Britain during the sustained violent conflict in Northern Ireland; for Italy in its conflicts with law-and-order terrorist bombings in the 1970s; for Spain during the 1980s; for India in its struggles to maintain order in the midst of the largest and one of the most heterogeneous democracies in the world; and for Israel during its long-running struggle with terrorism. It is now true for the United States, as the government (national and state) modifies the legal framework designed for normal times to adjust to the radical new security threat posed by militant Islamic fundamentalism reflected in the events of September 11, 2001. These changes may be effective or counterproductive, necessary or excessive. But that change will take place is certain, based on the experience of all modern democracies confronted with security threats of this type and magnitude. Yet in the political culture today, at least in the United States, acknowledgment of this reality is clouded by the polarized assertions of two factions. On one side are executive unilateralists. Reasoning from the correct starting point that the security domain necessitates a greater degree of the distinct qualities possessed by the executive branch—“speed, secrecy, flexibility, and efficiency that no other governmental institution can match”—these advocates conclude that unilateral executive discretion, not subject to oversight from other institutions, is required. On the other side are what might be called civil libertarian idealists. Advocates of this view sometimes deny that shifts in the institutional frameworks and substantive rules of the trade-offs between liberty and security do indeed regularly take place during times of serious security threats; at other times, they recognize that these shifts have occurred in the past but refuse to accept any induction from experience that would legitimate them in the future. The American constitutional system has the longest experience with these issues. The United States has not, before now, been subject to the kind of security threats, or the risk of external wars with domestic consequences, that have characterized many European democracies; yet with military governments imposed for over a decade in parts of the country, a civil war that slaughtered 600,000 citizens, foreign saboteurs, and risk of military attack, the United States has hardly been immune from the struggle to accommodate liberal values in extreme political circumstances. This chapter begins by chronicling the American experience with these issues, to gain perspective on how they have been addressed by the constitutional regime that historically has most prized individual liberty. That experience reveals that the judicial approach in this area has been, on the whole, more complex, and oriented toward different questions, than either executive unilateralists or civil libertarian idealists recognize. Contrary to the modern civil libertarian stance, the American courts have only rarely addressed the issues through the framework of individual constitutional rights. Yet contrary to the executive unilateralist position, courts have also been reluctant to find that the executive has unfettered discretion to make trade-offs between liberty and security. Instead, the courts have developed a process-based, institutionally oriented (as opposed to rights-oriented) framework for examining the legality of governmental action in extreme security contexts. Through this process-based approach, American courts have sought to shift the responsibility of these difficult decisions away from themselves and toward the joint action of the most democratic branches of the government. We then shift from past to present. Intriguingly, the few judicial decisions to date which address the new legal structures emerging in the United States embody the same framework for analysis that American courts have used in earlier eras of exigent circumstances. Despite the flourishing since the 1960s of a rights-based mode of discourse among political philosophers and abstractly oriented constitutional theorists, the American courts continue to employ a process-based, institutionally focused approach. That approach permits deviations from the ordinary legal structures and rules, but it rarely endorses the position that the executive can make these deviations through unilateral decision. By revealing this process-based approach to the American judicial role during wartime, this chapter aims to suggest (but not answer) several large theoretical questions. One is comparative. The American courts work in a system of separated and divided executive and legislative powers. When the American courts emphasize the importance of institutional endorsement by both political branches of new legal structures for addressing exigent security concerns, they can therefore rely on two institutional actors, with different democratic pedigrees, different incentives, and different interests to which they respond, to provide the political judgment behind policies adopted in the name of security. Separation-of-powers systems can also introduce temporal space between the moments at which each institution acts. Is the deference American courts show to the judgments of “the political branches” appropriate only within a system of separated and divided legislative powers? Or is this deference justified even when courts confront the unified executive-legislative powers of a parliamentary regime, which characterize most European democracies? A second large question concerns process-based approaches to issues of individual rights and constitutionalism more generally. In the American legal academy, process-based approaches came under withering intellectual critique in the 1980s. Despite the academic criticism, process-based approaches have had an enormous pull on American courts and continue to do so—particularly in times of crisis. In exploring the actual experience of constitutional democracy during crisis, it is therefore important to ask why, despite the theoretical questions about process-based reasoning, such methodologies continue during crises to have such a powerful grip on courts. Does this record suggest a problem in the intellectual critique of such approaches? Or does it suggest a problem in how courts have conceived their task in difficult circumstances?
Source Publication
The Constitution in Wartime: Beyond Alarmism and Complacency
Source Editors/Authors
Mark Tushnet
Publication Date
2005
Recommended Citation
Issacharoff, Samuel and Pildes, Richard H., "Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime" (2005). Faculty Chapters. 1961.
https://gretchen.law.nyu.edu/fac-chapt/1961
