US Should Join the Movement Away from Long Term Emergency Powers

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February 16, 2011
Kay Guinane

The signs are all around us. People are demanding limits long term emergency powers, saying they are undemocratic and allow unchecked government power. Most recently, the success of the first phase of the Egyptian Revolution in forcing President Hosni Mubarek to resign and their continuing calls for scrapping his 30 year old emergency powers demonstrate that emergencies cannot go on forever. Then they aren't emergencies anymore, just repressive governments.

Long term emergency powers and democracy are incompatible. By definition, emergencies are unusual, not the day-to-day state of things. That means democratic societies must periodically review emergency powers to see if they are still necessary, require adjustment, or should be allowed to lapse. This simple concept was supported by the United Nations Human Rights Council (HCR) in a December 2010 report on the promotion and protection of human rights and fundamental freedoms while countering terrorism. 

The report’s author, Special Rapporteur Martin Scheinin, says counterterrorism measures should be “consistent with the principle of normalcy,” and “recognized as a unique exception to customary legal constraint” subject to “sunset clauses and regular review.”  When these reviews are carried out by independent monitors they are “best practices helping to ensure that special powers relating to the countering of terrorism are effective and continue to be required, and to help avoid the 'normalization' or de facto permanent existence of extraordinary measures.”

The United Kingdom (UK) has set an example by conducting a review of its counterterrorism laws. The reviews included consultations with civil society organizations, such as Human Rights Watch and Amnesty International. The summary of this consultation said, "The terms of reference for the review made it clear that the review should consider a wide range of views, including those of civil liberty organisations and community groups. To meet this commitment, the Home Office wrote to key organisations (civil liberty and human rights organisations, organisations representing the legal profession, victims groups and special interest groups) making them aware of the review and providing advice on how they could contribute."

Although UK civil society groups did not think the resulting reform proposals go far enough, they  do go in the right direction: providing protection from what the British Home Office describes as "unwarranted state intrusion in their private lives with a return to common sense government." This includes limits on surveillance, detention and government databases with private information on citizens. They also rejected a proposal to ban groups based on their ideology.

In the United States the recent Congressional debate on the Patriot Act indicates we may be ready for such an adult conversation about our own counterterrorism laws. Congress can and should debate the need for these extraordinary post-9/11 powers, and consider Sen. Patrick Leahy's proposals for greater oversight and accountability. Given the many documented abuses of Patriot Act Powers, especially in the area of surveillance, greater oversight is a necessity. 

The Executive Branch has a role to play in this conversation as well. President Obama acknowledged the anti-democratic nature of long term emergency powers in his Feb. 1 speech about Egypt, when he said moving toward democracy there calls for lifting the emergency law.
Over a year ago I posted a blog calling for updating Executive Order 13224, signed by President George W. Bush on Sept. 23, 2001. It noted a host of problems, including "the lack of clear and concrete standards for listing as an SDGT, the overly broad and undefined ban on transactions with those “associated with” SDGTs {Specially Designated Global Terrorist] and the power of Treasury to shut down a charity “pending investigation” with no deadline for when such an “investigation” must end.  On top of it all, there are no procedures for a listed charity to effectively find out why it has been listed or to challenge it." 

In September 2011 this emergency order will be ten years old. Between now and then, the Obama administration should open up a public dialog about the ongoing need for these emergency powers, their effectiveness and what alternative approaches may be more compatible with human rights principles and constitutional standards.

The threat of terrorism is a long term problem, not an emergency. Let's not wait 30 years to come up with a long term strategy.