Law in Times of Crisis Part 4 pdf

Public officials who act in violation ofthe law in order to fend off great threats assume the risk of being foundcriminally and civilly liable for their illegal actions.. The Extra-Legal

The Executive in seizing the fugitive occurrence which so much advances the

good of their country, have done an act beyond the Constitution The Legislature

in casting behind them metaphysical subtleties, and risking themselves likefaithful servants, must ratify and pay for it, and throw themselves on theircountry for doing for [the people] unauthorized what we know they would havedone for themselves had they been in a situation to act.58

Similarly, following an attack (during a congressional recess) by a British

frigate, the Leopard, on an American ship, the Chesapeake, President

Jefferson spent unappropriated funds for munitions to strengthen tain strongholds in the face of a possible war with England He laterasked Congress for a retroactive approval of this expenditure, explaining:

cer-To have awaited a previous and special sanction by law would have lost occasionswhich might not be retrieved I trust that the Legislature, feeling the sameanxiety for the safety of our country, so materially advanced by this precaution,will approve, when done, what they would have seen so important to be done ifthen assembled.59

In the congressional debates that ensued, a general agreement withJefferson’s position prevailed across political parties.60

Thus, suggested Jefferson, ‘‘There are extreme cases where the lawsbecome inadequate even to their own preservation, and where the uni-versal recourse is a dictator, or martial law,’’61 and that ‘‘on great occa-sions every good officer must be ready to risk himself in going beyondthe strict lines of law, when the public preservation requires it; his mo-tives will be a justification.’’62 Jefferson sought to limit the incidents inwhich such illegal actions might be taken by claiming that they would

be justified if, and only if, three conditions were met:

(1) The occurrence of certain objective circumstances that amount to

‘‘extreme cases’’ and ‘‘great occasions.’’ That such ‘‘great occasions’’were to be rare is demonstrated by President Madison’s refusal toratify the controversial actions of General Jackson in New Orleans inearly 1815 Jackson was fined $1,000 for contempt of court for

58 Letter from Thomas Jefferson to John Breckenridge (Aug 12, 1803), quoted in Daniel P.

Franklin, Extraordinary Measures: The Exercise of Prerogative Powers in the United States

(Pittsburgh: University of Pittsburgh Press, 1991), p 45 (emphasis added).

59 Wilmerding, ‘‘The President and the Law,’’ 323 24.

60Ibid., pp 327 28; see also Schlesinger, The Imperial Presidency, p 24.

61 Letter from Thomas Jefferson to James Brown (Oct 27, 1808), at

http://memory.loc.gov/ammem/mtjhtml/mtjser1.html (last visited on August 8, 2005).

62 Letter from Thomas Jefferson to William C.C Claiborne, Governor of Orleans Territory (Feb 3, 1807), at http://memory.loc.gov/ammem/mtjhtml/mtjser1.html (last visited on August 8, 2005).

ignoring a writ of habeas corpus issued by Judge Dominick Hall andfor imprisoning the judge himself Jackson paid the fine out of hisown pocket It took Congress twenty-nine years before it repaid thefine (with interest) to Jackson As Justice Field of the United StatesSupreme Court wrote:

I confess I have always been taught to believe that Judge Hall was right

in imposing the fine, and that General Jackson earned the brightestpage in his history by paying it, and gracefully submitting to the judi-cial power Such I believe is the judgment of history and of thoughtfuljudicial inquirers; though a grateful country very properly refunded to

her favorite general the sum he had paid for a necessary but unauthorized

exercise of military power.63

(2) Actions by public officials that advance the good of the country.(3) An ex post approval of these actions by the American people (directly

or through their representatives in Congress) Such measures weretaken for the sake of preserving the life, liberty, and property of thepeople, and the people ought to determine whether the actionsshould be ratified Similarly, discussing the charge that the

Philadelphia Convention exceeded its powers, James Madison rejectedthe allegation, but added that even

if they had exceeded their powers, they were not only warranted, butrequired as the confidential servants of their country, by the circum-stances in which they were placed to exercise the liberty which theyassumed; and if they had violated both their powers and their obli-gations in proposing a Constitution, this ought nevertheless to be em-braced, if it be calculated to accomplish the views and happiness of thepeople of America.64

For this final and most crucial condition the need for ex postapproval to apply there ought to be open and public

acknowledgment of the unlawful nature of such actions and of thenecessity that called for committing them in the first place

63 Dow v Johnson, 100 US 158 (1879), pp 194 95 (Justice Field) (emphasis added); Sofaer,

War, Foreign Affairs, pp 333 36; George M Dennison, ‘‘Martial Law: The Development of

a Theory of Emergency Powers, 1776 1861’’ (1974) 18 American Journal of Legal History 52

at 61 65; Jonathan Lurie, ‘‘Andrew Jackson, Martial Law, Civilian Control of the

Military, and American Politics: An Intriguing Amalgam’’ (1989) 126 Military Law Review

133; Abraham D Sofaer, ‘‘Emergency Power and the Hero of New Orleans’’ (1981) 2

Cardozo Law Review 233 See also Wilmerding, ‘‘The President and the Law,’’ 326 27

(discussing a heated debate in 1807 in the House of Representatives and noting that all parties were united in agreement that certain circumstances may arise in which an

illegal suspension of the writ of habeas corpus would be proper).

64Clinton Rossiter (ed.), The Federalist Papers (New York: New American Library, 1961),

No 40, pp 254 55 (James Madison).

Whereas Locke puts his trust in an implicit, general, ex ante publicacquiescence in the exercise of an executive power to act outside the law,Jefferson’s approach insists that an explicit, particular, ex post legislativeratification of the same must be awarded Extra-legal actions cannot bejustified merely by reference to the motives of the actors, laudable asthese may be Rather, a separate and independent ex post ratificationprocess must take place in order for the extra-legal action to be justified

or excused In the absence of ex post ratification the actor may be subject

to legal sanctions for violating the dictates of the law, albeit for what arearguably the noblest of reasons Public officials who act in violation ofthe law in order to fend off great threats assume the risk of being foundcriminally and civilly liable for their illegal actions They must openlyand boldly disclose the nature of their actions and the reasons for takingthem and ‘‘throw [themselves] on the justice of [their] country.’’65 This

is the ethic of responsibility at its zenith

The circumstances surrounding Little v Barreme66 illustrate the tinctions between action and ratification During a period of hostilities

dis-between the United States and France, a merchant vessel, the Flying Fish,

sailing under the Danish flag, was captured by two American vessels

on suspicion of violating an act of Congress prohibiting commerce withFrance Under the relevant provision, the president had been authorized

to instruct naval commanders to seize any vessel on the high seas bound

or sailing to any French port The order issued by President Adams structed the commanders to seize vessels bound to or sailing from France When captured, the Flying Fish was sailing from France to Denmark, a

in-neutral state in the conflict The United States Supreme Court affirmedthe circuit court’s decision to grant damages against Captain George

Little, the commanding officer of the USS Boston, for the seizure and

detention of the Danish vessel Speaking for a unanimous court, ChiefJustice Marshall held that the president could not give lawful instruc-tions that ran contrary to express congressional legislation The com-mander’s actions could not be legalized by such a presidential order.The instructions of the executive order could not ‘‘change the nature ofthe transaction, nor legalize an act which, without those instructions,would have been a plain trespass.’’67 The court did not doubt Captain

65 Wilmerding, ‘‘The President and the Law,’’ 322 24, 329; Lobel, ‘‘Decline of Liberalism,’’ 1396.

66 6 US (2 Cranch) 170 (1804).

67 Ibid., p 178 See also United States v Smith, 27 F Cas 1192 at 1230 (C.C.D.N.Y 1806) (No 16,342).

Little’s motives Yet, despite the fact that his actions were undertakenfor the good of the country (as not only he but also the president saw it),the Supreme Court held such actions illegal and imposed penalties onhim.

This judicial decision was not, however, the end of the story After theSupreme Court had ruled on the matter and after damages had beenrecovered from Captain Little, Congress reimbursed him for his damages,interest, and charges, with money from the United States Treasury.68Theaction taken by Captain Little was ruled illegal, but the ‘‘justice of hiscountry’’ dictated that he should not bear the brunt for that action.While recognizing that Captain Little’s actions were the right thing to

do in the circumstances, the Supreme Court found them to be illegal Itwas only with the ex post ratification of Little’s actions by Congress thatthe gap between illegality and ‘‘the right thing to do’’ was, for practicalpurposes, closed This was by no means a foregone conclusion CaptainLittle took a double risk: first, that his actions would, as they indeedwere, be found illegal and that he might need to make reparations, bothcivil and penal, for such actions, and second, that ex post ratificationwould not materialize The potential absence of such ratification wouldhave meant that no reimbursement would have been made, and, perhapsmore significantly, that the moral and public vindication of CaptainLittle would not have been forthcoming Such substantial risks are notlightly taken and their existence militates against acting in a way thatfalls outside the legal order, although it does not completely bar thepossibility of such actions taking place

Jefferson’s approach to emergency powers may be compared with theconstitutional vision presented by President Lincoln during the CivilWar As noted in chapter 1 above, one possible reading of Lincoln’s as-sertions of special powers during the war sees the president as havingappealed to special emergency powers that are inherent in the constitu-tional framework and that are available to the executive in times of greatperil and risk There are, however, other possible readings of Lincoln’sclaims to such powers that bring his actions closer to the Extra-LegalMeasures model Thus, when explaining to Congress the extraordinarymeasures that he had taken prior to July 4, 1861, Lincoln said that those

measures, ‘‘whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then

as now, that Congress would readily ratify them It is believed that nothing

68 Wilmerding, ‘‘The President and the Law,’’ 324, n 6.

has been done beyond the constitutional competency of Congress.’’69

On other occasions, however (as noted in chapter 1), Lincoln seems toconsider the necessity and exigency of the times to have made con-stitutional that which in other circumstances might not have been so,without need for any further form of ex post ratification Since Lincoln’spresidency, arguments about emergency powers have invariably revolvedaround the claim that the president enjoys a wide range of constitu-tionally inherent powers, including emergency powers, and thereforeacts legally and constitutionally rather than outside the constitutionaland legal framework For presidents, the possibility of arguing that theiractions are constitutional is obviously desirable For the public, the no-tion that a valiant public official out to save the nation may be forced

to employ illegal means and ‘‘throw himself on the electorate’s ment’’ is difficult to accept Frederick Pollock, commenting on the viewthat the necessity that leads to the use of martial law may not make,

judg-of its own accord, measures taken to protect the nation legal even ifotherwise such measures would have been illegal, suggested that such atheory,

[I]mputes gratuitous folly to the common law, which cannot be so perverse as

to require a man in an office of trust to choose between breaking the law andbeing an incompetent officer and a bad citizen It seems, therefore, that theacts which every courageous and prudent magistrate would certainly do in thecircumstances supposed are not a kind of splendid offence, but are ‘‘justifiableand lawful for the maintenance of the Commonwealth.’’70

The obvious discomfort that Chief Justice Marshall felt in decidingagainst Captain Little reflected similar sentiments: ‘‘I confess the firstbias of my mind was very strong in favor of the opinion that thoughthe instructions of the executive could not give a right, they might yetexcuse from damages.’’71 Be that as it may, the subsequent ratificationand affirmation of Lincoln’s emergency actions by Congress72 and the

69Abraham Lincoln, ‘‘Message to Congress in Special Session (July 4, 1861),’’ in Basler, The Collected Works of Abraham Lincoln, vol IV, pp 421, 429 (emphasis added) See also Farber, Lincoln’s Constitution, p 194.

70Frederick Pollock, ‘‘What is Martial Law?’’ (1902) 70 Law Quarterly Review 152 at 156.

71 Little v Barreme, 6 US (2 Cranch) 170 at 179 (1804).

72 On August 6, 1861, Congress ratified all of the president’s actions related to the armed forces and the militia In 1863, Congress passed a general immunity legislation: An Act Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases,

ch 81, paras 4, 7, 12 Stat 755, 756 58 (1863).

Supreme Court73made the question of the legality of those actions tically a moot one.74

prac-Dicey’s ‘‘spirit of legality’’

Introduction to the Study of the Law of the Constitution reflects Dicey’s

sus-picion of executive discretion, treating it as leading to use of arbitrarypowers Dicey reminds us that ‘‘the supremacy of the law of the landboth calls forth the exertion of Parliamentary sovereignty, and leads toits being exercised in a spirit of legality.’’75 At the same time, he ac-knowledges that ‘‘The rigidity of the law constantly hampers (and some-times with great injury to the public) the action of the executive.’’76Specifically, he concedes that ‘‘Under the complex conditions of modernlife no government can in times of disorder, or of war, keep the peace

at home, or perform its duties towards foreign powers, without sional use of arbitrary authority.’’77 How are we supposed to meet thechallenge of the need to authorize occasional use of arbitrary (i.e., dis-cretionary) authority while maintaining limitations and checks on theuse of such power? Dicey offers us two complementary solutions First isfor the executive to obtain from parliament ‘‘the discretionary authoritywhich is denied to the Crown by the law of the land,’’ i.e., by recourse

occa-to ‘‘exceptional legislation.’’78 While exigencies call for the exercise bythe executive of discretionary power such power must be governed bystatute The executive must obtain ‘‘aid from Parliament’’ in fashioningthe discretionary powers with which to meet, and successfully repel,crises and emergencies.79 The fact that executive emergency powers arederived from, and based on, statutes reaffirms parliamentary supremacyeven in times of grave threats to the nation, while at the same time, itacts to limit and confine the scope of such powers They may be discre-tionary They may be extraordinary But they are never unlimited andare always open to review by the courts.80

What form should ‘‘aid from Parliament’’ take? The obvious responsesuggested by Dicey is the passage of ‘‘exceptional legislation’’ that would

73 Mitchell v Clark, 110 US 633 (1884); The Prize Cases, 67 US (2 Black) 635, 668 70 (1862).

74 But see Sanford Levinson, ‘‘The David C Baum Memorial Lecture: Was the

Emancipation Proclamation Constitutional? Do We/Should We Care What the Answer

Is?’’ (2001) University of Illinois Law Review 1135.

75Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th edn,

Indianapolis, IN: Liberty Classics, 1982), p 273 As noted above, we refer to the 8th edition of Dicey’s work since that was the last edition that he himself prepared.

76 Ibid., p 271 77 Ibid 78 Ibid 79 Ibid., p 272 80 Ibid., p 273.

enable the executive to exercise discretionary powers Such exceptionallegislation, falling squarely within the ambit of the model of legislativeaccommodation which we discussed in chapter 1, will be enacted exante, i.e., prior to the exercise of the relevant powers by the executive.

It may be introduced either on an ad hoc (to meet a concrete exigency)

or on a permanent basis Once put in place it serves as the legal ground against which executive emergency powers will be exercised, andagainst which their legality and eventual legitimacy will be measuredand evaluated

back-Yet, Dicey also recognizes that ex ante special legislation does not

‘‘exhaust the instances in which the rigidity of the law necessitatesthe intervention of Parliament.’’ Rather, ‘‘There are times of tumult orinvasion when for the sake of legality itself the rules of law must be

broken The course which the government must then take is clear The

Ministry must break the law and trust for protection to an Act of Indemnity.’’81

By enacting such an Act of Indemnity parliament ‘‘legalises illegality’’and asserts its sovereignty and supremacy.82 Here, again, the govern-ment must obtain aid from parliament But whereas the exceptionallegislation discussed above calls for such legislative aid to be accorded

ex ante, legislative Acts of Indemnity furnish the government with anafter the fact, retrospective, ex post aid

Under both special legislation and ex post Act of Indemnity, ment must obtain aid from parliament For Dicey, claims of inherentexecutive powers to deal with emergencies are inconceivable as theyare certain to undermine parliamentary sovereignty and supremacy byleading to practically unfettered discretion and authority in the hands

govern-of the government Dicey also rejects what he calls ‘‘the doctrine govern-of litical expediency,’’ namely the view that ‘‘during an invasion, a general,

po-a mpo-ayor, po-a mpo-agistrpo-ate, or indeed po-any loypo-al citizen, is legpo-ally justified in doing any act, even though prima facie a tort or a crime, as to which he

can prove to the satisfaction of a jury that he did it for the public vice in good faith, and for reasonable and probable cause.’’83 Necessitydoes not, in and of itself, make legal that which in other circumstanceswould have been illegal An Act of Indemnity, Dicey suggests, ‘‘legalisesillegality.’’ Acts of Indemnity may do one of two things: they may shelterthe acting public official from civil or criminal responsibility for her

ser-81 Ibid., p 272 (emphasis added).

82Ibid., pp 10 11, 142; A.W Bradley and K.D Ewing, Constitutional and Administrative Law

(13th edn, New York: Longman, 2003), p 56.

83Dicey, Law of the Constitution, p 412 (emphasis added).

violations of the law while holding that her actions were, and remain,illegal Alternatively they may seek to exculpate the actor from any legalresponsibility for her actions by making such actions, retrospectively,lawful Dicey takes the latter approach: ‘‘Acts of Indemnity are ret-rospective statutes which free persons who have broken the law from

responsibility for its breach, and thus make lawful acts which when they

were committed were unlawful.’’84 An Act of Indemnity is, in this sense,constitutive for it transforms prior illegality into legality Diecy rejectsFrederick Pollock’s suggestion that an Act of Indemnity is merely ‘‘ameasure of prudence and grace Its office is not to justify unlawful acts

ex post facto, but to quiet doubts, to provide compensation for innocentpersons in respect of damage inevitably caused by justifiable acts whichwould not have supported a legal claim.’’85 calling it a ‘‘very inadequatedescription of an Act of Indemnity.’’86This fits with Dicey’s overall argu-ment for the supremacy of law in general, and with his position aboutmartial law (and the limitations on the exercise of governmental powerunder it) in particular, since an ‘‘Act of Indemnity, again, though it isthe legalisation of illegality, is also itself a law It is no doubt anexercise of arbitrary sovereign power; but where the legal sovereign is aParliamentary assembly, even acts of state assume the form of regularlegislation.’’87 Thus, by ‘‘making lawful acts which when they were com-mitted were unlawful,’’ the Act of Indemnity ensures that all actions bypublic officials are done under a legislative framework and do not existoutside the law However, it is not the mere fact of necessity that legal-izes illegality Rather, it is a subsequent legislative act of ratification

an ex post approval by the people’s representatives in parliament thatmay do so Until and unless such an Act of Indemnity is passed the fact

of illegality remains

Searching for ‘‘moral politicians’’

In his essay ‘‘Politics as a vocation,’’ Max Weber promotes what he callsthe ‘‘ethic of responsibility’’ over the ‘‘ethic of ultimate ends.’’88Politicalleaders those who choose politics as a vocation must stand ready

to violate even fundamental principles and values if such violation is

84 Ibid., p 142 (emphasis added) See also ibid, p 10.

85 Pollock, ‘‘Martial Law,” 157.

86Dicey, Law of the Constitution, p 414. 87 Ibid., p 145.

88 Max Weber, ‘‘Politics as a Vocation’’ in H.H Gerth and C Wright Mills (eds and trans.),

From Max Weber: Essays in Sociology (New York: Oxford University Press, 1946), p 77 at

120 21.

genuinely for the good of the community at large: ‘‘[I]t is not true that

good can follow only from good and evil only from evil, but that oftenthe opposite is true Anyone who fails to see this is, indeed, a political in-fant.’’89Thus, ‘‘Whoever wants to engage in politics at all, and especially

in politics as a vocation lets himself in for the diabolic forces lurking

in all violence.’’90However, even if their actions have been genuinely forthe public good, political leaders may still be required to pay the price

of acting in violation of such principles and values It is not enough toargue, as Locke suggests, that the public permitted such actions ex ante

as part of its implicit acquiescence in the application of the tive power in appropriate circumstances More is needed if the official

preroga-is not to be held liable for her actions and to be relieved from makingreparations for her wrongful acts Even when she breaks a rule for goodreasons, she may still have a duty to make reparations.91

Michael Walzer takes a similar position with respect to what is known

as ‘‘the problem of the dirty hands,’’ namely the notion that no one canhold political power without getting her hands dirty at some point.92Walzer points to a distinction between doing the right thing in utili-tarian terms and the moral value of such actions: ‘‘[A] particular act ofgovernment may be exactly the right thing to do in utilitarian termsand yet leave the man who does it guilty of a moral wrong.”93Thus, there

is no need to choose between upholding an important moral principleand avoiding national catastrophe Both continue to be applicable at thesame time Government ought to avoid disasters and to overcome them

as soon as possible once they occur This is the right thing to do But

‘‘right’’ in this context must not be confused with moral rightness Wemust not attach moral praise to such actions if they contravene moralprinciples They are morally wrong but practically necessary In this light

we can understand Walzer’s question of how one recognizes a ‘‘moral

89 Ibid., p 123. 90Ibid., p 125.

91Robert Nozick, ‘‘Moral Complications and Moral Structures’’ (1968) 13 Natural Law Forum 1 at 35 n 46.

92 Michael Walzer, ‘‘Political Action: The Problem of Dirty Hands’’ in Marshall Cohen,

Thomas Nagel, and Thomas Scanlon (eds.), War and Moral Responsibility (Princeton: Princeton University Press, 1974), p 62; Thomas Nagel, Mortal Questions (New York:

Cambridge University Press, 1979), p 75; Bernard Williams, ‘‘Politics and Moral

Character’’ in Bernard Williams, Moral Luck: Philosophical Papers, 1973 1980 (New York:

Cambridge University Press, 1981), p 54; Jean Bethke Elshtain, ‘‘Reflections on the

Problem of ‘Dirty Hands’’’ in Sanford Levinson (ed.), Torture: A Collection (New York:

Oxford University Press, 2004), p 77; Gross, ‘‘Chaos and Rules,’’ 1105.

93 Walzer, ‘‘Dirty Hands,’’ 63.

politician’’ and his answer: ‘‘by his dirty hands.’’94A moral person who isnot a political leader will (and can) refuse to act in an immoral way Shekeeps her hands clean A politician who is immoral will merely pretendthat her hands were clean, for example, by denying any wrongdoing.Alternatively she may argue that whatever is the pragmatic right thing

to do becomes, for that reason only, also moral and legitimate A moralpolitician will do the right (pragmatic) thing to save the nation, whileopenly acknowledging and recognizing that such actions are (morally)wrong that is, openly admitting that her hands are indeed dirty Thequestion then becomes not whether a political leader will act in thisway in the face of a moral principle to the contrary (for it is clear thatshe will act), but rather what moral judgment should be attached tosuch action

Under both Weber’s ethic of responsibility and Walzer’s moral cian paradigms, saying that extra-legal action was appropriate underthe circumstances does not, in and of itself, absolve the politician fromher moral culpability The Extra-Legal Measures model takes this a stepfurther by exploring the circumstances in which politicians who havedone the right thing may actually be absolved from legal liability fortheir extra-legal actions For that to happen it is not enough under themodel that there be a general agreement that the actions taken werethe right thing to do at the relevant time Something more is needed.That something more is, it is argued, the public’s explicit, particular,and ex post ratification

politi-Disobedience and ratification

Official disobedience

Public officials, like everybody else, ought to obey the law, even whenthey disagree with specific legal commands However, there may be ex-treme exigencies where officials may regard strict obedience to legalauthority as irrational or immoral.95 Those who insist on an unqual-ified rule of obedience to the law (at least where public officials areconcerned), no matter what the circumstances may be, would resolvethe official’s dilemma in such cases by finding that her obligation

to obey legal authority is undiminished by the exigency Others may

94 Ibid., p 70.

95Frederick Schauer, ‘‘The Questions of Authority’’ (1992) 81 Georgetown Law Journal 95 at

110 15.

argue that the decision whether to obey ought to be made on a by-case basis, carefully comparing the relative costs and benefits of eachalternative A particularistic calculus may lead to the conclusion that,

case-at least in some cases, the benefits of disobedience exceed its socialcosts

One possible pragmatic middle position is to regard the rule of dience as establishing a strong presumption in favor of obedience that

obe-is rebuttable in exceptional cases where the wrong of dobe-isobedience obe-isoutweighed by the greater wrong that would follow from obeying therules Thus, the rule of obedience may require public officials to obey

a constitution as it is interpreted by the courts, regardless of whether

or not they agree with the courts’ particular interpretations Yet, even ifone accepts the case for an unqualified rule of judicial supremacy, theremay be circumstances such as President Lincoln’s challenge to the

Supreme Court’s ruling in the Dred Scott case when disobedience may

be justified.96Such a ‘‘presumptive’’ approach is not without difficulties.The harder the presumption is to overcome, the more rule-based-like itbecomes with all the attendant problems of rule-based decision-making;the easier it is to override the rule of obedience, the less meaningful itbecomes with the risk of collapsing the presumption into a mere exer-cise in particularistic, contextual decision-making.97

Under the presumptive approach, the possibility of a lawful override

of the rule the idea that in appropriate circumstances deviating fromthe rule may be not only morally permissible, but legally acceptable

as well compounds the problem further The presumptive approachmay fail to present adequate safeguards where we have reasons to be-lieve that errors by public officials that result in misuse, abuse, andoveruse of emergency powers are going to be more socially costly thanerrors related to underuse of such powers Even more significantly, thepresumptive approach fails to provide strong enough incentives for offi-cials to play by the rule of obedience rather than justify overriding thatrule in a particular case In the absence of a strong, even absolute, rule

of obedience, public officials are left with a ‘‘weighted presumption’’that may not be amenable to enforcement through sanctions.98

96 Larry Alexander and Frederick Schauer, ‘‘On Extrajudicial Constitutional

Interpretation” (1997) 110 Harvard Law Review 1359 at 1382 83.

97 Oren Gross, ‘‘Are Torture Warrants Warranted? Pragmatic Absolutism and Official

Disobedience’’ (2004) 88 Minnesota Law Review 1481 at 1496 500.

98 Emily Sherwin, ‘‘Ducking Dred Scott: A Response to Alexander and Schauer” (1998) 15

Constitutional Commentary 65 at 70.

The Extra-Legal Measures model and its component of official dience offer another middle ground between the diametrically opposedpoles The model potentially alleviates some of the concerns associatedwith the presumptive model Most significantly, it may raise the costs ofrule deviation for public officials while, at the same time, maintaining

disobe-a strong commitment to ldisobe-aw disobe-abidingness

The Extra-Legal Measures model offers the possibility that public ficials having to deal with extreme cases may consider acting outsidethe legal order while openly acknowledging their actions and the extra-legal nature of such actions The model rejects the possibility of an exante lawful override of concrete legal rules and principles or, indeed, ofthe rule of obedience itself, as suggested by the presumptive approach,while accepting the possibility that an official who violates the law mayescape sanctions in exceptional circumstances

of-Under extreme circumstances public officials may regard strict ence to legal authority as irrational or immoral because of a contextualrebalancing of values that takes place at a level that is antecedent to therelevant legal rule itself, i.e., the level of the rule’s underlying reasons orsimilar first-order, content-dependent, reasons that relate to obedience

obedi-to the rule.99 According to the Extra-Legal Measures model, if an cial determines that a particular case necessitates her deviation fromthe rule, she may choose to depart from that rule But at the time sheacts extra-legally and will not know what the personal consequences ofviolating the rule are going to be Not only does the basic rule continue

offi-to apply offi-to other situations (that is, it is not canceled or terminated), it

is not even overridden in the concrete case at hand.100 Rule departureconstitutes, under all circumstances and all conditions, a violation ofthe relevant legal rule Yet, whether the actor would be punished forher violation remains a separate question.101Society retains the role ofmaking the final determination of whether the actor ought to be pun-ished and rebuked, or rewarded and commended for her actions AsFrederick Schauer notes, in the context of the United States: ‘‘[S]ocietypresently strikes this balance pursuant to a procedure under which ex

99Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (New York: Oxford University Press, 1991), p 128; Heidi M Hurd, ‘‘Challenging Authority’’ (1991) 100 Yale Law Journal 1611 at 1625 28;

Schauer, ‘‘The Questions of Authority,’’ 110 15.

100 Schauer, ‘‘The Questions of Authority,’’ 103 (suggesting ‘‘the idea of overridable obligations that survive the override despite being overridden in a particular case’’).

101 But see Sherwin, ‘‘Ducking Dred Scott,’’ 70 71.

post justified acts of disobedience to the law on the part of officials arepunished quite mildly, if at all, while ex post unjustified acts of disobe-dience to the law are punished somewhat more heavily than those sameacts would have been punished merely for being bad policy.’’102 It is up

to society as a whole, ‘‘the people,’’ to decide how to respond ex post toextra-legal actions taken by government officials in response to extremeexigencies The people may decide to hold the actor accountable for thewrongfulness of her actions, or may approve them retrospectively Evenwhen acting to advance the public good under circumstances of greatnecessity, officials remain answerable to the public for their extra-legalactions

Ex post ratification

Society may determine that certain extra-legal actions, even whencouched in terms of preventing future catastrophes, are abhorrent, un-justified, and inexcusable In such a case, the acting official may becalled to answer for her actions and make legal and political amends.She may, for example, need to resign her position, face criminal charges

or civil suits, or be subject to impeachment proceedings Alternatively,the people may approve the actions and ratify them Such ratificationmay be formal or informal, legal as well as social or political

Legal modes of ratification include, for example, the exercise of ecutorial discretion not to bring criminal charges against officials ac-cused of violating the law,103 jury nullification where criminal chargesare brought, and executive pardoning or clemency where criminalproceedings result in conviction On at least one occasion, presiden-tial clemency was granted to eleven agents of the Israeli General Secu-

pros-rity Service, including the head of the service, prior to trial, blocking

any future possibility of criminal proceedings being brought againstthem.104 Governmental indemnification of state agents who are foundliable for damages in civil proceedings may also operate as ex post

102 Schauer, ‘‘The Questions of Authority,’’ 114.

103 See, e.g., H.C 5100/94, Pub Comm against Torture in Israel v The State of Israel, 53(4) P.D 817, at para 40 (Barak, P.).

104 H.C 428/86, Barzilai v Gov’t of Israel, 40(3) P.D 505 See also Mordechai Kremnitzer,

‘‘The Case of the Security Services Pardon’’ (1987) 12 Iyunei Mishpat 595; Pnina Lahav,

‘‘A Barrel without Hoops: The Impact of Counterterrorism on Israel’s Legal Culture’’

(1988) 10 Cardozo Law Review 529 at 547 56; Yechiel Gutman, Taltelah ba-Shabak: ha-yoets ha-mishpati neged ha-memshalah mi-parashat Tovyanski ad parashat Kav 300 (A Storm in the GSS) (Tel Aviv: Yediot Aharonot, 1995), pp 15 133; Gross, ‘‘Torture Warrants,’’

1523 24.

ratification of the extra-legal actions of those agents In the UnitedStates, because of the principle of sovereign immunity, existing doctrinebars bringing tort claims for constitutional violations against the federalgovernment, unless Congress has specifically made such a claim avail-

able In Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics,

the Supreme Court held that such constitutional violations might beremedied by way of money damages recovered in suits brought againstgovernment officials in their individual capacities Individual responsi-bility of government officials was thus established as a mechanism toenforce constitutional rights.105 A public official who acts extra-legally

may be exposed to having a Bivens claim brought against her and to

being found liable for damages to persons whose constitutional rightswere violated by her actions Such threats, even if practically remote,play a role in providing added deterrence against acting extra-legally.106While the fact that governmental indemnification has become practi-cally automatic may be the subject of criticism, this does not detractfrom its characterization as a ratification of extra-legal actions previously

taken by public officials The Bivens claims system may not be working

optimally,107 but its basic logic still holds using individual bility as a mechanism to deter constitutional violations by publicofficials

lia-Acts of Indemnity offer another route to ex post ratification As notedabove, A.V Dicey suggests that, ‘‘There are times of tumult or invasionwhen for the sake of legality itself the rules of law must be broken The

course which the government must then take is clear The Ministry must

break the law and trust for protection to an Act of Indemnity.’’108 By ing such Acts of Indemnity, parliament ‘‘legalises illegality,’’ and ‘‘free[s]

enact-105 403 US 388 (1971) See also 42 U.S.C para 1983 (1994) (permitting actions against state officials for violation of the constitution and federal statutes, but providing no

similar legislative mechanism against federal officials); Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (New Haven: Yale University Press,

1997), p 40; Richard H Fallon, Jr and Daniel J Meltzer, ‘‘New Law, Non-Retroactivity,

and Constitutional Remedies’’ (1991) 104 Harvard Law Review 1733 at 1822.

106 Cornelia T L Pillard, ‘‘Taking Fiction Seriously: The Strange Results of Public Officials’

Individual Liability under Bivens’’ (1999) 88 Georgetown Law Journal 65 at 66, 76 77;

Carlson v Green, 446 US 14, 21 (1980); Janell M Byrd, ‘‘Rejecting Absolute Immunity

for Federal Officials’’ (1983) 71 California Law Review 1707 at 1718 21; John C Jeffries, Jr., ‘‘In Praise of the Eleventh Amendment and Section 1983’’ (1998) 84 Virginia Law Review 47 at 51.

107Pillard, ‘‘Taking Fiction Seriously,’’ 77, 79 90; Amar, The Constitution and Criminal Procedure, p 40.

108Dicey, Law of the Constitution, p 272 (emphasis added).

persons who have broken the law from responsibility for its breach, and

thus make lawful acts which when they were committed were unlawful.’’109

Political and social ratification is also possible Charles Black gested, in a different, yet related, context, that once a public officialviolates the law, ‘‘he should at once resign to await trial, pardon, and/or

sug-a decorsug-ation, sug-as the csug-ase might be.’’110 Honorific awards can establish

ex post ratification in appropriate circumstances Withholding a oration may also send a strong message of rejection and condemna-tion Michael Walzer notes the remarkable ‘‘national dissociation’’ bythe British from the RAF Bomber Command He argues (although this iscontested by others) that the colorful director of the strategic ‘‘saturationbombing’’ of Germany from February 1942 until the end of the war, AirMarshal Arthur Harris whose nickname, not at all coincidentally, was

dec-‘‘Bomber’’ was not, unlike other commanders, rewarded with a age Even more tellingly, although bomber pilots suffered heavy casu-alties, they are not recorded by name in Westminster Abbey, unlikeall other pilots of Fighter Command who died during the war Walzerdescribes Harris as having ‘‘done what his government thought neces-sary, but what he had done was ugly, and there seems to have been aconscious decision not to celebrate the exploits of Bomber Command

peer-or to honpeer-or its leader.’’111 Withholding of decoration, as well as otherforms of social ostracism, is one specific example of informal sanc-tions that society may apply against officials for acting in violation of

a recognized rule Other forms of informal sanctions may involve thediscreditation of the actor in the eyes of others, which may also put

in risk past accomplishments of the rule violator, and loss of valuedrelationships.112

109 Ibid., pp 10 11, 142.

110 A Michael Froomkin, ‘‘The Metaphor is the Key: Cryptography, the Clipper Chip, and

the Constitution’’ (1995) 143 University of Pennsylvania Law Review 709 at 746 n 153; Richard A Posner, Catastrophe: Risk and Response (New York: Oxford University Press,

2004), p 241.

111Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (3rd edn, New York: Basic Books, 2000), p 324 But see Robin Neillands, The Bomber War: The Allied Air Offensive against Germany (Woodstock, NY: Overlook Press, 2001), pp.

401 04 (arguing that there is ‘‘no truth in the popular allegations that Harris and Bomber Command were denied any personal or official recognition’’).

112 Paul H Robinson, ‘‘Should the Victims’ Rights Movement have Influence over

Criminal Law Formulation and Adjudication?’’ (2002) 33 McGeorge Law Review 749 at

749; David Cole, ‘‘Judging the Next Emergency: Judicial Review and Individual Rights

in Times of Crisis’’ (2003) 101 Michigan Law Review 2565 at 2577.

By requiring a process of ex post ratification (or rejection), the Legal Measures model as outlined here emphasizes an ethic of responsi-bility on the part not only of public officials, but also of the general pub-lic Officials will need to acknowledge openly the nature of their actionsand attempt to justify both their actions and their undertaking of thoseactions.113This open acknowledgment and engagement in public justi-ficatory exercise is a critical component in the moral and legal choicesmade by the officials The public then must decide whether to ratify therelevant extra-legal actions retrospectively Thomas Jefferson analogizedextra-legal actions taken by public officials on great occasions to acts of

Extra-a guExtra-ardiExtra-an who is mExtra-aking Extra-an Extra-advExtra-antExtra-ageous, Extra-albeit unExtra-authorized, trExtra-ans-action on behalf of her minor ward When the minor comes of age, theguardian must explain her actions thus: ‘‘I did this for your good; I pre-tend to no right to bind you: you may disavow me, and I must get out ofthe scrape as I can: I thought it my duty to risk myself for you.’’114Duringthe process of ratification, each member of the public becomes morallyand politically responsible for the decision ‘‘[D]ecent men and women,hard-pressed in war, must sometimes do terrible things,’’ writes Walzer,

trans-‘‘and then they themselves have to look for some way to reaffirm the

val-ues they have overthrown.’’115 Yet, according to the Extra-Legal Measuresmodel, it is not only the actors who must attempt to find a way to reaf-firm fundamental values they have violated in times of great exigency.Society too must undertake a project of reaffirmation While Walzer sug-gests that members of the public may ‘‘have a right to avoid, if [they]possibly can, those [political or other] positions in which [they] might beforced to do terrible things,’’116the model seeks to compel each member

of society, in whose name terrible things have been done, to becomemorally responsible through the process of ratification or rejection.117Government agents must decide whether or not to act extra-legally intimes of crisis They must face that question as moral agents But theirgrappling with the question is then followed by a public assessment of

113Mortimer R Kadish and Sanford H Kadish, Discretion to Disobey: A Study of

Lawful Departures from Legal Rules (Stanford: Stanford University Press, 1973),

pp 5 12.

114Letter from Thomas Jefferson to John C Breckinridge (Aug 12, 1803) in Ford, Thomas Jefferson, pp 1136, 1138 39.

115Walzer, Just and Unjust Wars, p 325 (emphasis added).

116Walzer, ‘‘Dirty Hands,’’ 67; A John Simmons, Moral Principles and Political Obligations

(Princeton: Princeton University Press, 1979), pp 57 100.

117Eugene V Rostow, ‘‘The Japanese American Cases a Disaster’’ (1945) 54 Yale Law Journal 489 at 533.

that same question In this instance, however, the answer carries notonly moral significance, but the potential for very real and tangiblelegal effects in the form of sanctions that would be imposed on the actorwhen the public fails to ratify her illegal actions What if the public doesratify ex post the extra-legal actions taken by public officials in times ofemergency? How are we to understand the legal status of those actionsonce ratified? Much would depend on the nature of the ratification Theanswer to such questions would be made on a case-by-case basis Forexample, we have already seen Dicey’s claim that an Act of Indemnity

‘‘legalises illegality.’’118 Acts of Indemnity, according to Dicey, exculpatethe actor from any legal responsibility for her actions by making suchactions which when taken were unlawful lawful retrospectively Onthe other hand, it is clear that Congress’s decision to indemnify CaptainLittle did not reflect an intention to make his otherwise unlawful actionslegal

An act of ratification may also bear the characteristics of informal (andpossibly even formal) constitutional and legal amendment.119 The com-bination of a grave crisis, the illegal response to it by the government,the open acknowledgment of the nature of the actions taken to counterthe exigency, and the subsequent popular ratification may form a con-stitutional moment that will lead to a constitutional shift on the issue

at hand Ratification can also be made in the form of an explicit stitutional or statutory change that seeks to legalize and bring withinthe ambit of the legal system actions that were previously consideredoutside its boundaries

con-In any event, it is worth noting again that even where the illegal tions performed by public officials are taken to preserve and protectthe nation, that alone does not, in and of itself, make those actionslegal Necessity does not make legal that which otherwise would havebeen illegal It may excuse the actor from subsequent legal liability,

ac-but only subsequent ratification may (ac-but does not have to) justify such

extra-legal conduct.120 Extra-legal actions and constitutionally ble acts are not equal in obligation and force under the constitutionalscheme.121The former are not made legal or constitutional as a result of

permissi-118Dicey, Law of the Constitution, pp 10 11, 142.

119Bruce Ackerman, We the People: Foundations (Cambridge, MA: Belknap Press, 1991), pp.

320 21

120 Lobel, ‘‘Decline of Liberalism,’’ 1390 97.

121 Marbury v Madison, 5 US (1 Cranch) 137, 176 77 (1803); Schauer, ‘‘The Questions of Authority,’’ 102 03.

the necessity of the situation Indeed, as we discuss below, the very factthat an action is branded ‘‘extra-legal’’ raises the costs of undertaking it.

No security without law

Challenges to the Extra-Legal Measures model are substantial Perhapsmost significant is the argument that the protection of a nation is legit-imate only so long as that nation itself is worth saving A despotic, au-thoritarian, and oppressive regime is not worth the effort A democracymay lose the battle against its enemies either by physically crumblingbefore them or by collapsing inward when it abandons its fundamentalprinciples in the heat of battle A weak, hesitant action against an im-pending threat may cause irreparable damage to the state’s body But theinstinct of self-preservation may lead to transformation of the very na-ture of that society and to the loss of its soul As Paul Wilkinson puts it:

It is a dangerous illusion to believe one can ‘‘protect’’ liberal democracy by pending liberal rights and forms of government Contemporary history abounds

sus-in examples of ‘‘emergency’’ or ‘‘military’’ rule carrysus-ing countries from racy to dictatorship with irrevocable ease What shall it profit a liberal democracy

democ-to be delivered from the stress of factional strife only democ-to be cast under the ironheel of despotism?122

Similarly, Carl Friedrich observes: ‘‘For any community built upon such

a faith, the task of survival and of security becomes one of defending

the inner-most self as well as that of defending the outer-most boundary,

when confronted with an enemy ’’123‘‘To make [man’s] innermost selfsecure,’’ he continues, ‘‘is more vital to the security and survival of aconstitutional order than any boundary or any secret It is the very core

of constitutional reason of state It is the reason why a constitutionalstate is founded and is maintained.’’124‘‘If we do not preserve the rule oflaw zealously in this area as well,’’ commented the Landau Commission,

‘‘the danger is great that the work of those who assail the existence

of the State from without will be done through acts of self-destructionfrom within, with ‘men devouring each other.’’’125 Adherence to therule of law is a necessary element in a nation’s security and safety As

122Paul Wilkinson, Terrorism and the Liberal State (2nd edn, New York: New York University

Press, 1986), pp 122 23.

123Friedrich, Reason of State, p 13. 124 Ibid., p 119.

125Israeli Government Press Office, Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (1987), reprinted in (1989) 23 Israel Law Review 146 at 183.

Aharon Barak, president of the Israeli Supreme Court, wrote in one ofhis opinions: ‘‘[T]here is no security without law, and the rule of law is

a component of national security.’’126

Opposition to the Extra-Legal Measures model is rooted in the fear oftotalitarianism and authoritarianism that the model seems to enable

If we accept the possibility, in extreme cases, of governmental actionsthat are extra-legal so long as they are taken to advance the public good,there can be no constitutional or legal limitations on such governmentalexercise of power If we accept that the executive may act outside the law

in order to avert or overcome catastrophes, there is nothing to preventthe wielder of such awesome powers from exercising them in violation ofany constitutional and legal limitations on the use of such powers Extra-legal power can only mean an unlimited power, constrained neither

by any legal norms nor by principles and rules of the constitutionalorder.127

Another significant concern about the Extra-Legal Measures modeltakes a swipe at the argument that, in appropriate circumstances, vio-lating the law may better serve the long-term interests of the rule of lawthan any of the alternatives The force of the law as regulating behavior

is, to a significant extent, a function of a cultivated habit of obedience

to its dictates and an established ethos of its supremacy Violating thelaw deviates from that pattern of obedience When such violation isperpetrated by the authorities, it is all the more pernicious As Justice

Brandeis wrote in Olmstead v United States:

Decency, security and liberty alike demand that government officials shall besubjected to the same rules of conduct that are commands to the citizen OurGovernment is the potent, the omnipresent teacher For good or for ill, it teachesthe whole people by its example Crime is contagious If the Government be-comes a law-breaker, it breeds contempt for law; it invites every man to become

a law unto himself; it invites anarchy To declare that in the administration ofthe criminal law the end justifies the means to declare that the Governmentmay commit crimes in order to secure the conviction of a private criminal would bring terrible retribution.128

126 H.C 428/86, Barzilai v Gov’t of Israel, 40(3) P.D 505 at 622 (Barak, P.).

127Sotirios A Barber, On What the Constitution Means (Baltimore: The Johns Hopkins

University Press, 1984), pp 188 90; Joseph M Bessette and Jeffrey Tulis, ‘‘The Constitution, Politics, and the Presidency’’ in Joseph M Bessette and Jeffrey Tulis

(eds.), The Presidency in the Constitutional Order (Baton Rouge, LA: Louisiana State

University Press, 1981), p 3 at 24 25; Cole, ‘‘Judging the Next Emergency,’’ 2585.

128 Olmstead v United States, 277 US 438 at 485 (1928) (Brandeis, J., dissenting).

If government may deviate from the principle of the rule of law in somecases, would it not be able to do so in others? And why should the publichold the rule of law in any higher regard than its government? Oncethe rule of law ceases to be thought of as an absolute immovable rule,further incursions are likely to take place into its domain.129 Violations

of the law by public officials may lead to similar conduct by privateindividuals taking their cue from the government It may also breedfurther lawlessness among public officials Government officials, seeingthat they can get away with violating the law and being intoxicated

by the immense powers that such conduct confers upon them, mayseek to reproduce similar patterns of behavior even after normalcy hasbeen restored In order to justify the retention of such powers, they mayclaim that the emergency has not yet terminated, or that new dangersgather over the horizon, thus perpetuating a crisis mentality among themembers of the community

Similar criticism is made by none other than Niccolò Machiavelli In

his discussion of the regime for the ideal republic in Discourses on Livy,

Machiavelli argues that observance of the laws of the republic by thepeople and even more so by their government is crucial to the success

of the republican enterprise ‘‘I do not believe,’’ he writes, ‘‘there is athing that sets a more wicked example in a republic than to make a lawand not observe it, and so much the more as it is not observed by himwho made it.’’ He makes this comment in the context of discussing theimprisonment of Appius, the head of the Decemviri, after the Decemvirihad been removed from office Machiavelli notes that the right of appealagainst the judgment, recognized under the laws of the Roman republic,was denied Appius He then comments that, ‘‘Although the criminal life

of Appius merited every punishment, nonetheless it was hardly a civilthing to violate the laws, and so much the more one that had been madethen.’’130 Violation of the laws, for whatever reason, creates a harmfulprecedent for the future As we saw in chapter 1, Machiavelli’s analysis

of the Roman dictatorship led him to conclude that the ideal republicought to provide for emergency institutions ex ante Emergency powersought to be incorporated into, and provided for by, the ordinary legalsystem Government must not be left to choose between destruction of

129 See, e.g., Liat Collins, ‘‘GSS Agent Involved in Death of Harizat Transferred from Post,’’

Jerusalem Post, May 1, 1995, p 1; Bruce Ackerman, ‘‘The Emergency Constitution’’ (2004) 113 Yale Law Journal 1029 at 1044.

130Niccolò Machiavelli, Discourses on Livy, trans Harvey C Mansfield and Nathan Tarcov

(Chicago: University of Chicago Press, 1996), p 93.

the republic in the face of an extreme crisis and the use of extra-legalmeasures to fight off that crisis Emergency legislation and expansion-ist interpretation of existing laws can be, in due course, uprooted andreplaced by norms approximating the pre-emergency legal system Butonce a habit of lawlessness and disobedience has developed, the point

of no return may have been crossed

The fear of establishing a habit of lawlessness also led Machiavelli

to criticize the demand for transparency and open acknowledgment bypublic officials of their extra-legal actions (should such actions be taken).Even in the context of the ideal republic Machiavelli is willing to rec-ognize the possibility of acting extra-legally in the face of emergency as

long as the laws appear to have been sustained and complied with If

the laws must be broken in a given situation it is still better to disguisethe fact of non-compliance and maintain an appearance of observance,rather than expose the extra-legal nature of the relevant actions.131TheRomans used to conduct various religious rites before taking impor-tant public decisions such as whether to commence or refrain from

a military action and would follow the signs given them by the gods.High-level Roman officials looked for divine signs such as through theattitude of chicken to food or examination of the entrails of sacrificedanimals of future success or failure The interpretation of these signs,

the auspicia (‘‘the watching of birds’’) was entrusted to special experts, the augures A positive sign was considered a necessary condition for au-

thorizing magistrates to embark on the mission.132 ‘‘Nonetheless,’’ notesMachiavelli, ‘‘when reason showed them a thing they ought to do notwithstanding that the auspices had been adverse they did it in anymode But they turned it around with means and modes so aptly that

it did not appear that they had done it with disdain for religion.’’133When necessity or prudence dictated a course of action not in accor-dance with the auspices, necessity prevailed over a strict adherence tothe dictates of religion Yet, even in such cases, every effort was made tomaintain the appearance that no violation of these dictates had takenplace Machiavelli compares the actions of two military commanderswho embarked on battles despite negative signs While Papirius knew

‘‘how to accommodate his plans to the auspices’’ and won his battle

131 See also Slavoj ˇ Ziˇzek, Welcome to the Desert of the Real!: Five Essays on September 11 and Related Dates (London: Verso, 2002), p 103.

132Andrew Lintott, The Constitution of the Roman Republic (Oxford: Clarendon Press, 1999),

pp 103 04; Machiavelli, Discourses, p 41.

133Machiavelli, Discourses, p 41.

against the Samnites, Appius Pulcher openly ignored the religious signs

given him by the augures and lost his battle against the Carthaginians.

‘‘For this he was condemned at Rome and Papirius honored.’’ However,Machiavelli emphasizes, such respective condemnation and honor were

‘‘not so much because one had won and the other lost as because onehad acted against the auspices prudently and the other rashly.’’134The Extra-Legal Measures model is also challenged over its reliance

on what we call the assumption of separation That assumption, which

is the subject of the next chapter, is defined by the belief in our ity to separate emergencies and crises from normalcy, counter-terrorismmeasures from ordinary legal rules and norms Yet, as discussed in thenext chapter, this important assumption has been undermined in sig-nificant ways Models of emergency regimes that are based on it ought

abil-to be treated with some suspicion Yet, so the argument goes, the Legal Measures model relies on that false assumption to a greater extentthan any of the alternative models The notion of total separation be-tween normalcy and emergency, of impermeable boundaries betweenthe two realities, enables proponents of the model to claim that theordinary legal system will not be tarnished by the taking of extra-legalmeasures in times of emergency and crisis as the ordinary legal systemwill be insulated against adverse long-term effects of such violations.But, if we accept that such clear separation between the two realities isunattainable, then the model may result in more damage than any ofthe constitutional models.135

Extra-The case for rule departures

The closing parts of each of the previous two chapters discussed thevarious challenges to the models of accommodation and the Business asUsual model and the possible responses to those challenges The struc-ture of this chapter is no different The previous section examined themajor criticisms against the Extra-Legal Measures model This sectionconcludes by offering possible responses Before going any further wenote that the relative length of this section is mostly a result of the factthat the Extra-Legal Measures model seems, at first blush, more troublingthan the constitutional models of emergency powers It recognizes thepossibility of extra-legal actions on the part of public officials As such,

134 Ibid., p 42.

135 Cole, ‘‘Judging the Next Emergency,’’ 2587 88.

the model is exposed to weighty critiques and the case for it, i.e., thecase for rule departures, may be more complex than it is in the context

of the constitutional models of emergency powers

Prospective and uncertain relief

As noted in the previous section, the most critical challenge to the Legal Measures model is that it does not offer any meaningful method

Extra-to maintain constitutional and legal constraints over public officials If atime of crisis permits stepping outside the legal system, no limits andcertainly no legal limits can be set on how far such deviations would

go and how wide in scope they would be Even some who expressed tain sympathy with the possibility of exercising powers extra-legally andextra-constitutionally are quick to concede the point.136Yet, to acknowl-edge the possibility of extra-legal action may be different from acceptingwilly-nilly limitless powers and authority in the hands of state agents.Similarly, as explained below, the fact that under the Extra-Legal Mea-sures model legal norms and rules are neither suspended nor, indeed,overridden, means that legal (as well as political and social) accountabil-ity is still possible

cer-Dicey clearly recognizes this point when he suggests that ‘‘there areone or two considerations which limit the practical importance that canfairly be given to an expected Act of Indemnity The relief to be obtained

from it is prospective and uncertain.137 Uncertainty and the prospective ture of the required ex post ratification may not only slow down the rush

na-to act extra-legally in the first place They may also facilitate meaningfullimitations on such actions once they are taken By separating the extra-legal actions of public officials in extreme cases and subsequent publicratification, and by ordering them so that ratification follows, ratherthan precedes, action, the Extra-Legal Measures model seeks to add un-certainty to the decision-making calculus of state agents Such ‘‘prudentobfuscation’’138raises both the individual and national costs of pursuing

an extra-legal course of action and, at the same time, reinforces the rule

137Dicey, Law of the Constitution, pp 144 45 (emphasis added).

138 Dan M Kahan, ‘‘Ignorance of Law is an Excuse But Only for the Virtuous’’ (1997) 96

Michigan Law Review 127 at 139 41.

the uncertain prospects for subsequent ratification The public may, forexample, disagree after the fact with the acting officials’ assessment ofthe situation and the need to act extra-legally Ratification would besought ex post, when calm and rationality, rather than heightened emo-tions, might govern public discourse and when more information aboutthe particular case at hand may be available to the public and possiblyafter the particular danger has been eliminated or averted.139Indeed, ifthe officials are successful and the harm to the nation is averted, theassessment of the legitimacy of acting extra-legally is likely to be moreheavily weighted against them Success of extra-legal actions may actu-ally strengthen the case against the granting of ex post ratification tothe acting officials, deterring them further from acting extra-legally.The conspiracy of L Sergius Catilina to take over the control of Rome

by invading it with an army from Etruria was one of Marcus TulliusCicero’s greatest moments.140 Acting as consul, Cicero foiled the con-spiracy by mobilizing troops to defend the city and capturing Cati-line’s accomplices On December 5, 63 BC, Cicero assembled the RomanSenate in order to obtain its consent for the summary execution offive of Catiline’s accomplices Cicero evidently believed that such ac-tion was necessary in order to safeguard Rome In his fourth Catili-narian Oration before the Senate, Cicero conveyed the following de-scription of what would have befallen Rome had the conspirators beensuccessful:

I seem to myself to see this city, the light of the world and the citadel of allnations, falling on a sudden by one conflagration I see in my mind’s eye miser-able and unburied heaps of cities in my buried country; the sight of Cethegusand his madness raging amid your slaughter is ever present to my sight Butwhen I have set before myself Lentulus reigning, as he himself confesses that hehad hoped was his destiny, and this Gabinius arrayed in the purple and Catilinearrived with his army, then I shudder at the lamentation of matrons, and theflight of virgins and of boys and the insults of the vestal virgins.141

139Dicey, Law of the Constitution, p 145; Pollock, ‘‘Martial Law?’’ 153 54.

140Ernest George Hardy, The Catilinarian Conspiracy in its Context: A Re-Study of the Evidence (Oxford: Basil Blackwell, 1924); Sallust, The Jugurthine War and the Conspiracy of Catiline, trans S.A Handford (Baltimore: Penguin, 1963); Max Cary and Howard H Scullard, A History of Rome down to the Reign of Constantine (3rd edn, New York: St Martin’s Press,

1975), pp 246 47.

141Marcus Tullius Cicero, The Orations of Marcus Tullius Cicero, trans C D Yonge (London:

H.G Bohn, 1856) Part 4, sections 11 12, available online at

http://www.perseus.tufts.edu/cgi-bin/ptext?doc=Perseus%3Atext%3A1999.02.0019; query=toc;layout=;loc=Tul.%204 (last visited on August 8, 2005).

It is in light of this existential threat to Rome, and because ‘‘these thingsappear to me exceedingly miserable and pitiable,’’ that Cicero decided

to ‘‘show myself severe and rigorous to those who have wished to bringabout this state of things.’’142Yet, the execution without a proper trial ofRoman citizens who were not declared as public enemies and who, at therelevant time, did not present an immediate threat to Rome, was outsidethe legal authority of the consul or, for that matter, of the Senate.143Thus, although the Senate had previously declared a state of emergency

(tumultus) and passed a resolution of last resort, such proclamation could

not legally confer new powers to the consul.144 Nevertheless Cicero did

go ahead and execute the conspirators without trial

Although Cicero was generally hailed as having saved the republic,the risk to himself of acting extra-legally was significant Not long afterthe conspiracy was crushed, an attempt was made by new tribunes,led by one of Cicero’s bitterest enemies, Publius Clodius, to impeachCicero for the unlawful executions by passing a bill that any citizenguilty of putting another to death without trial would be sent into exile.With the political odds stacked high against him Cicero went into exile.Condemned by yet another bill as a criminal for his violation of thelaw, Cicero’s house was demolished and his property confiscated.145 Ayear later, when Clodius’s term as tribune ended and new forces, backed

by Pompey, assumed power in Rome, Cicero was recalled back after avote of 416 to 1 in the Senate and a subsequent positive public vote.146Jean-Jacques Rousseau explains those events:

[I]f, in the first transports of joy, [Cicero’s] conduct was approved, he was justlycalled, later on, to account for the blood of citizens spilt in violation of thelaws He was therefore justly honoured as the liberator of Rome, and alsojustly punished as a law-breaker However brilliant his recall may have been, itwas undoubtedly an act of pardon.147

In a democratic society, where values such as constitutionalism, ability, and individual rights are firmly entrenched and traditionallyrespected, we can expect that the public would be circumspect about

account-142Ibid.; Hardy, The Catilinarian Conspiracy, p 85.

143Cary and Scullard, History of Rome, p 247; Hardy, The Catilinarian Conspiracy, pp 86 87.

144Hardy, The Catilinarian Conspiracy, pp 55 57, 98 99.

145Tom Holland, Rubicon: The Triumph and Tragedy of the Roman Republic (London: Abacus,

2003), pp 238 40.

146 Ibid., pp 253 54.

147Jean-Jacques Rousseau, The Social Contract and Discourses, trans G.D.H Cole (New York:

Everyman, 1993), pp 295 96 See also Walzer, ‘‘Dirty Hands,’’ 81.

governmental attempts to justify or excuse illegal actions That beingthe case, ‘‘Any suspicion on the part of the public, that officials hadgrossly abused their powers, might make it difficult to obtain a Parlia-mentary indemnity for things done.’’148 The public may also determinethat the extra-legal actions violated values and principles that are tooimportant to be encroached upon, as a matter of principle or in thecircumstances of the particular case The greater the moral and legalinterests and values infringed upon, the less certain the actor can be ofsecuring ratification.

Uncertainty is also important because it reduces the potential risk ofunderdeterrence that is involved in the possibility of ex post ratification.Underdeterrence may be a significant concern if public officials havegood reasons to believe that ratification will be forthcoming in futurecases when they act extra-legally.149 As Dicey openly acknowledges inthe context of Acts of Indemnity, the expectation of the executive thatsuch acts will be passed by parliament ‘‘has not been disappointed’’ as amatter of history and experience.150Acts of Indemnity have, in fact, been

‘‘passed by all governments when the occasion requires it.’’151This wouldseem to eliminate, or at least significantly minimize, any uncertainty onthe part of public officials about the prospects of ex post ratification AsDavid Dyzenhaus argues:

If the Extra-Legal Measures model were public, as it must be if it is to promotedeliberation, the expectation would be generated of after-the-fact validation ofillegal official acts In an atmosphere of fear that expectation would likely bemet rather easily, especially when the threat is, or is claimed to be, a constantone and the government successfully manipulates public opinion.152

Underdeterrence may result from what Meir Dan-Cohen calls conditions

of low ‘‘acoustic separation’’ between conduct rules and decision rules.153

148Dicey, Law of the Constitution, p 145.

149 John T Parry and Welsh S White, ‘‘Interrogating Suspected Terrorists: Should Torture

Be an Option?’’ (2002) 63 University of Pittsburgh Law Review 743 at 764 65; Sanford

Levinson, ‘‘ ‘Precommitment’ and ‘Postcommitment’: The Ban on Torture in the Wake

of September 11’’ (2003) 81 Texas Law Review 2013 at 2045 48.

150Dicey, Law of the Constitution, p 144.

151 Mitchell v Clark, 110 US 633 at 640 (1884).

152 David Dyzenhaus, ‘‘The State of Emergency in Legal Theory” in Victor V Ramraj,

Michael Hor and Kent Roach (eds.), Global Anti-Terrorism Law and Policy (New York:

Cambridge University Press, 2005), p 65 at 72 73 See also Monaghan, ‘‘The Protective Power,’’ 26.

153 Meir Dan-Cohen, ‘‘Decision Rules and Conduct Rules: On Acoustic Separation in

Criminal Law’’ (1984) 97 Harvard Law Review 625 at 636 41.