The Legal Theory Bookworm recommends Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism by Bruce Ackerman. Here is a description:
Terrorist attacks regularly trigger the enactment of repressive laws, setting in motion a vicious cycle that threatens to devastate civil liberties over the twenty-first century. In this clear-sighted book, Bruce Ackerman peers into the future and presents an intuitive, practical alternative. He proposes an “emergency constitution” that enables government to take extraordinary actions to prevent a second strike in the short run while prohibiting permanent measures that destroy our freedom over the longer run.Ackerman’s “emergency constitution” exposes the dangers lurking behind the popular notion that we are fighting a “war” on terror. He criticizes court opinions that have adopted the war framework, showing how they uncritically accept extreme presidential claims to sweeping powers. Instead of expanding the authority of the commander in chief, the courts should encourage new forms of checks and balances that allow for decisive, but carefully controlled, presidential action during emergencies. In making his case, Ackerman explores emergency provisions in constitutions of nations ranging from France to South Africa, retaining aspects that work and adapting others. He shows that no country today is well equipped to both fend off terrorists and preserve fundamental liberties, drawing particular attention to recent British reactions to terrorist attacks. Written for thoughtful citizens throughout the world, this book is democracy’s constitutional reply to political excess in the sinister era of terrorism.
And here is an excerpt from the first chapter:
“War on terror” is, on its face, a preposterous expression. Terrorism is simply the name of a technique: intentional attacks on innocent civilians. But war isn’t merely a technical matter: it is a life-and-death struggle against a particular enemy. We made war against Nazi Germany, not against the Blitzkrieg.
Once we allow ourselves to declare war on a technique, we open up a dangerous rhetorical path. During times of panic, indiscriminate war talk will encourage a shocked public to lash out at amorphous threats without the need to define them clearly. Who knows who will be swept into the net?
There is a second big flaw. By calling it a war, we frame our problem as if it involved a struggle with a massively armed major power, capable of threatening our very existence as a free country. But terrorism isn’t a product of overweening state power. It is a product of the free market in a world of high technology.
There have always been millions of haters in the world, but their destructive ambitions have been checked by the state’s monopoly over truly overwhelming force. Terrorists might assassinate a nation’s leader or blow up a building, but they could not devastate a great city or poison an entire region. These are things that only states could do. With the proliferation of destructive technologies, the state is losing this monopoly.
Here is where the logic of the free market enters. Once a technology has escaped a state monopoly, it’s almost impossible for government to suppress the lucrative trade completely. Think of drugs and guns. Even the most puritanical regimes learn to live with vice on the fringe. But when a fringe group obtains a technology of mass destruction, it won’t stay on the fringe for long.
The root of our problem is not Islam or any ideology, but a fundamental change in the relationship between the state, the market, and technologies of destruction. If the Middle East were magically transformed into a vast oasis of peace and democracy, fringe groups from other places would rise to fill the gap. We won’t need to look far to find them. If a tiny band of extremists blasted the Federal Building in Oklahoma City, others will want to detonate suitcase A-bombs as they become available, giving their lives eagerly in the service of their self-destructive vision.
Preventive measures will sometimes fail. Once the state no longer monopolizes a technology of destruction, the laws of supply and demand will inexorably put weapons in the hands of the richest and best-organized terrorists in the marketplace, and government will be playing catch-up. The only question is how often the security services will drop the ball: once out of ten threats, once out of a hundred, once out of a thousand?
These basic points are obscured by the fog of war talk. Real wars don’t come out of nowhere because the government has dropped the ball. They arise after years of highly visible tension between sovereign states, and after the failure of countless efforts at diplomacy. They occur only after the public has reluctantly recognized that the awesome powers of warmaking might be justified. Even sneak attacks, as at Pearl Harbor, are preceded by years of escalating tension that put the public on notice that a powerful nation-state, with an aggressive military force, threatens overwhelming harm to all we love.
But when terrorists strike, all we really know is that they managed to slip through a crack that the government failed to close. Given the free market in destructive technologies, we don’t know whether we face a tiny group of fanatics, with a couple of million dollars, which happened to get lucky, or a more serious organization with real staying power. By lapsing into war talk we trigger a set of associations that are often false and frequently encourage the worst of panic reactions. We head down a misleading path suggesting that not only are “the terrorists” numerous and well organized, but they are somehow capable of wielding the earth shattering forces mobilized by major nation-states. This is very unlikely: Osama in his cave doesn’t remotely represent the totalizing threat of Hitler in his Chancellery. And yet in the aftermath of a sneak attack, our expansive war talk invites us to suppose that we should confide to government the awesome powers that might well be appropriate when fighting a Third World War.