On 9/11 and three natures of a permanent state of emergency

It has now become commonplace to argue that the 9/11 attacks and the ensuing US ‘war on terror’ have dramatically transformed the global security and counterterrorism paradigm. In the two decades since, the drastic practices coming out of this new paradigm have often resulted in systemic abuse and a serious weakening of human rights. One particular consequence of the post-9/11-counterterrorism paradigm is there has been a rapid and global expansion of emergency powers – which have become, as Gross once described using the ‘timeless’ words of Shakespeare, as “invisible as a nose on a man’s face, or a weathercock on a steeple”. It has become even more common in the post-9/11-era to view terrorist threats as creating a ‘permanent’ emergency. This is not to say that the post-9/11 war on terror was new as far as the issues of states of emergency are concerned, but rather, as aptly put by Dyzenhaus, „all that is new is the prevalence of the claim that this emergency has no foreseeable end and so is permanent.”

In this post, I explore some of the multiple ways in which emergency powers have come to proliferate, and take permanence around the world since 9/11. Drawing on a number of illustrative emergency case studies, I argue that –at least– three ‘natures’ facilitated the contagion of a permanent state of emergency as generated by the events of that day.

1. The ‘trans-temporal’ nature

In a Korean folk tale, there lives a terrifying monster that keeps growing as it eats all the metal scraps and iron around a village. Fed up by the destruction caused, people try to kill it in any way possible. Even when they throw it into a fire, the monster makes its way out, flies back to the village, its whole body aflame, and burns down all the houses. Villagers eventually understand that it cannot be killed, thus they name it ‘Bulgasari’ (“impossible to kill”). Emergency powers may not easily be possible to kill, first and foremost due to their ‘trans-temporal’ nature. This is patently evident in three ways:

First, exceptional national security/emergency powers are increasingly being incorporated into permanent law. Antiterrorism legislation is usually the key vehicle here. Israel and Turkey offer particularly interesting case studies in this regard, as they have large volumes of antiterrorism legislation that were first adopted as temporary emergency measures, but then became permanent features of the countries’ ordinary legal arsenal. What the post-9/11 counterterrorism paradigm additionally brought forward was a brutalization effect in authoritarian regimes across the world, i.e. empowering them to create a climate of brutal violence at the expense of fundamental freedoms. This is discernible in countries institutionalizing emergency regimes by inter alia adopting Orwellian counterterrorism laws paving the way for massive human rights violations such as arbitrary detentions and enforced disappearances (such cases include Afghanistan and Egypt) or used the counterterrorism for vindictive and nefarious ends, including but not limited to, as an opposition and minority repression vehicle (such as in China and Russia).

Second, emergency regimes can easily shed their skin and transform themselves into different shapes. This is to say that what is terminated de jure might continue to exist de facto in legally dubious form and substance. Just to give one striking example, despite the fact that the state of emergency was lifted in Turkey’s Kurdish southeast in December 2002, the rubric of ‘temporary security zones’ introduced by the Turkish military in June 2007 – the legal basis of which comes from a 1981 law adopted by the 12 September military regime, enables the military forces to effectively occupy the area and exercise ‘quasi-martial law’ exceptional and stringent powers. The declaration of such zones, as clearly exemplified by the increasing numbers of curfews and entry bans, regularly raises the spectre of past drastic emergency rule in these regions.

Finally, but most importantly, emergency powers tend to accumulate over a period of years. This shapes how states perceive future crises, and may eventually form a crisis mentality (or an emergency raison d’état). Even a quick tour of state of emergency practices reveals that states use their extensive experience with extraordinary powers and authority, granted and exercised during previous emergencies, as its starting point, and increasingly so. Consider, for example, how the Kurdish minority has borne the brunt of Turkey’s post-coup state of emergency along with the Gülen Movement – a religious organization accused of masterminding the 2016 attempted coup. They have suffered a massive crackdown marked by higher levels of political imprisonment, greater restrictions on freedom of assembly and association, and on electoral aspects of self-determination. Similarly, yet much less grave in scope, ‘community profiling’ and ‘discrimination’ concerns have been raised in the context of warrantless house raids and arrests of Muslims during France’s state of emergency in the aftermath of the 2015 Paris attacks. Finally, consider how 9/11 gave rise to a unique security alliance between Israel and India that was based on their ‘contrapuntal geographies of threat’ originating with Muslims (namely, Palestinians and Kashmiri Muslims and Pandits).

2. The ‘corrosive’ nature

It is certainly nothing new to claim that emergency is not a friend of constitutions. While constitutions do regulate and attempt to limit emergency powers, states of emergency, once in place, pose some fundamental problems to the idea of constitutionalism. In the end, the executive branch traditionally assumes a leading position in overcoming a crisis, which then leads to the gradual and/or total expansion of its power. And even more so in the post-9/11 era. Consider, for example, the adoption of ‘the Authorization for Use of Military Force’ in the US – a joint congressional resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” – which arguably gave the President vast legislative authority to act as he saw fit in the global war on terror (on this, see Hamdi v Rumsfeld). So, as Scheppele strikingly noted, the US reaction to 9/11 was not based on a typical and sudden emergency, but rather involved measured responses with “much constitutional care […] [followed] by ever-expanding justifications for the assertion of executive and unilateral power” in both domestic and foreign policies. Moreover, when national security is involved, domestic courts have also traditionally taken a deferential attitude towards the executive branch. Either they have tended to provide affirmative legal ‘cover’ to legitimize the repressive measures or, at the very least, have totally abdicated their judicial duty to perform a meaningful legal review to assess whether the enacted emergency measures are proportionate and directly related to actual security needs. Against this backdrop, the outcome is rather unsurprising. Based on ample evidence of actual practices, emergency regimes coupled with broad and vague anti-terrorism laws tend to be accompanied by gross and systematic human rights abuses.

Now how to eliminate this corrosive nature? This requires two measures on two levels that cumulatively get to the heart of the problem, namely enabling the three branches to participate together in the ‘common constitutional project’. First, at the domestic level, we need a new normative constitutional design, long advocated by Dyzenhaus as the derogation model, where parliaments (especially, parliamentary committees) are accorded the possibility to hear and provide a preliminary review of both the executive claims as to the existence of a state of emergency and any contemplated derogation measure. This vital information could then be shared with judges to ensure a proper and meaningful judicial review of emergency measures after properly authorized. Second, at the international level, long-standing loopholes in the international supervision of emergencies can be tackled by more political means. These loopholes include but are not limited to the hands off approach of human rights bodies and delay-ridden individual complaint mechanism that often fall short to address the long-term effects of emergency measures on human rights, the rule of law and democracy (for one, see the PACE Resolution 2209 (2018) aiming to strengthen the supervisory role of the Secretary General of the CoE in derogation settings).

3. The ‘transformative’ nature

But what about those cases that completely undercut the existing constitutional order and/or substantially modify the constitution? As Ferejohn and Pasquino famously argue, such an exercise is “no longer properly an exercise of an emergency power” at all, but rather amounts to “an exercise of constituent power”. In the Schmittian terminology, this corresponds to the institution of sovereign dictatorship – one that has the ability to both suspend the rule of law and create a new order in the name of the people as the ultimate enabler of sovereignty. Yet, the Schmittian ‘sovereign dictatorship’ is a rather outdated concept as far as states of emergency operate today: democracy and the rule of law are entrenched across the world despite some contemporary problems, constitutions often regulate and limit the operation of emergency powers and there is hardly any real demand for extra-legal justifications for emergencies. But at the same time, an argument could be made Schmitt’s conceptualization of the permanent state of emergency as a claim for the constituent power – something Greene referred to as the transformative nature of a permanent state of emergency – is still awake today.

The Turkish post-coup emergency case is striking in this regard: what we have witnessed since 2016 in Turkey is that President Erdogan and his government, having survived a vicious attempted coup, gripped a power of unprecedented strength and carried out highly elaborate and controversial policies to centralize political authority, using the state of emergency as an ideal tool to transform, rather than preserve, the underlying legal and constitutional order. The transformative nature of the Turkish post-coup emergency has clearly shown itself as what Ackerman defines as a ‘constitutional moment’: the country passed perhaps its greatest constitutional moment when the majority of the Turkish people voted in favour of a package of constitutional amendments in a referendum during the protracted post-coup emergency, under the thin and all-too-transparent veneer of constitutional legitimacy. It is undeniable that the dramatic constitutional transformation that Turkey has been experiencing since 2016 clearly demonstrates how a state of emergency can have long-lasting implications for the legal and political landscape of a country. However, besides some early cases, such as the Nazi regime in Germany, we know little about the dynamics of states of emergency that could lead to such authoritarian abrogation or transformation of the constitution. Had the Bush administration engaged in a more substantive constitutional project (a constitutional amendment to limit due process instead of a joint congressional resolution, recalling the lucid example shared by Albert and Roznai) in the immediate aftermath of the 9/11 events, the story would have been wholly different today. However, as an era of emergencies is set to bear down on us, as most recently exemplified by the COVID-19 pandemic or Russia’s brutal invasion of Ukraine, the transformative potential of emergencies is something we should not take lightly. One recent proposal to resist this problem is what Albert and Roznai originally termed as the ‘emergency unamendability’ aiming to disable, but not all together prohibit, the constitutional amendment procedure in extreme emergency conditions. But as for more extreme cases – for example, the Turkish post-coup emergency, where states of emergency are (mis)used as a veil of legitimacy for the social and political re-engineering of the state power – we clearly need more comprehensive and workable proposals.

This blog post was first published on Verfassungsblog on 9 May 2021.