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Abstract:
The debate about the moral and legal nature of the prohibition on torture and about the permissibility of carving out exceptions to that ban is generally conceptualized as a clash between two opposing poles with no middle ground between them. One may support an absolute ban on torture. Alternatively, one may believe that the duty not to torture, even if generally desirable and laudable, does not apply in certain exceptional circumstances, or, even if it does apply, is overridden, canceled or trumped by competing values.

This paper defends an absolute prohibition on torture while, at the same time, arguing that truly catastrophic cases, such as the paradigmatic ticking-bomb scenario, should not be brushed aside as merely hypothetical or as either morally or legally irrelevant. The paper suggests that the way to deal with the "extreme" or "catastrophic" case is neither by reading it out of the equation nor by using it as the center-piece for establishing general policies. Rather, the focus is turned to the possibility that truly exceptional cases may give rise to official disobedience, i.e., public officials may step outside the legal framework and be ready to accept the legal ramifications of their actions. I argue that the prospect of extralegal action supports and strengthens the possibility of formulating and maintaining an absolute prohibition on torture.

Torture, Human Rights, Emergency

Abstract:
May torture ever be morally or legally permissible? In Why Terrorism Works, Professor Alan Dershowitz makes two important claims. First, he rejects the notion that a prohibition on torture ought to be absolute. Second, in an attempt to limit the use of torture and maximize civil liberties Dershowitz suggests the mechanism of judicial torture warrants as a prerequisite to torturing suspected terrorists in interrogations.

This article challenges both of Dershowitz's propositions by introducing two interlinked claims based on concepts of pragmatic absolutism and official disobedience. I argue that an absolute legal ban on torture ought to be maintained. However, in truly catastrophic cases the appropriate method of tackling extremely grave national threats may call for going outside the legal order. The way to deal with the extreme or catastrophic case is neither by ignoring it nor by using it as the center-piece for establishing general policies. Rather, the focus is on the possibility that truly exceptional cases may give rise to official disobedience: Public officials may act extralegally and be ready to accept the legal ramifications of their actions. Whereas Dershowitz argues that torture may be both morally and legally permissible under certain circumstances, I suggest that even if we recognize that torture may be morally defensible in exceptional cases, that fact should not affect an uncompromising legal ban on torture.

The debate about the moral and legal nature of the prohibition on torture has followed the fault lines separating deontologists and consequentialists. The article introduces the two opposing perspectives and suggests that the picture is more complex than either camp would have us believe. It argues that the case for an absolute prohibition on torture can be made stronger and more compelling by wedding together non-consequential and pragmatic claims. The article goes on to suggest that catastrophic cases present open-minded absolutists with a dilemmatic choice and argues the case for official disobedience as a mechanism to address that tragic choice. Catastrophic cases may entail public officials going outside the legal order, at times violating otherwise accepted constitutional principles. It is then up to society as a whole to decide how to respond ex post to extralegal actions undertaken by these officials. The article explains the advantages of such ex post ratification and suggests that a method of ex post ratification is preferable to ex ante judicial approval of interrogational torture.

Abstract:
Two broad categories of constitutional models have traditionally been invoked in the context of fashioning legal responses to emergencies. According to the "Business as Usual" model, ordinary legal rules continue to be strictly followed with no substantive change even in times of crisis. The law in times of war remains the same as in times of peace. Other models of emergency powers may be grouped together under the general category of "models of accommodation," insofar as they attempt to accommodate, within the existing normative structure, security considerations and needs. Though the ordinary system is kept intact as much as possible, some exceptional adjustments are introduced to accommodate for exigency.

The article suggests that these traditional models may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the legal order, at times even violating otherwise accepted constitutional principles. Such a response, if pursued in appropriate circumstances and properly applied, may strengthen rather than weaken, and result in more rather than less, long-term constitutional fidelity and commitment to the rule of law.

The "Extra-Legal Measures" model proposed in the Article informs public officials that they may act extralegally when they believe that such action is necessary for protecting the nation and the public in the face of calamity, provided that they openly and publicly acknowledge the nature of their actions. It is then up to the people to decide, either directly or indirectly (e.g., through their elected representatives in the legislature), how to respond to such actions. The people may decide to hold the actor to the wrongfulness of her actions, demonstrating commitment to the violated principles and values. The acting official may be called to answer, and make legal and political reparations, for her actions. Alternatively, the people may act to approve, post facto, the extralegal actions of the public official. The process leading up to the ratification (or rejection) of those actions promotes deliberation after the fact, as well as establishes the individual responsibility of each member of the relevant community for the actions taken on behalf of the public during the emergency. That very process, with its uncertain outcomes, also serves an important function of slowing down any possible rush to use extralegal powers by governmental agents. By separating the issues of action and ratification, the model adds an element of uncertainty hanging over the head of the public official who needs to decide how to act. That uncertainty raises the cost of taking an extralegal course of action.

The model seeks to preserve the long-term relevance of, and obedience to, legal principles, rules, and norms. While going outside the legal order may be a "little wrong," it is advocated in order to facilitate the attainment of a "great right," namely the preservation not only of the constitutional order, but also of its most fundamental principles and tenets. The model promotes, and is promoted by, ethics of political and popular responsibility, political morality, and candor.

Abstract:
The article seeks to examine some of the general patterns with respect to treating emergencies as they are reflected in domestic constitutional arrangements. The article explores existing constitutional emergency arrangements of over seventy countries around the world, attempting to classify some of the important attributes of such constitutional arrangements into meaningful categories. Specifically, the article examines the various constitutional options with respect to such questions as: (1) how (and whether) to define a state of emergency in the constitutional document; (2) who has the power and authority to declare a state of emergency (and to terminate such a declaration); (3) what political and judicial control (if any) exists under the constitutional framework over the use of emergency powers; and (4) what are the legal ramifications of declaring a state of emergency with respect, for example, to the protection of individual rights and civil liberties and the possibility of suspending the constitution, in whole or in part.

Emergency Powers, Constitutional Law

Abstract:
The terrorist attacks of September 11, 2001, and the ensuing war on terror have focused attention on issues that have previously lurked in a dark corner at the edge of the legal universe. The book presents systematic and comprehensive attempt by legal scholars to conceptualize the theory of emergency powers, combining post-September 11 developments with more general theoretical, historical and comparative perspectives. The authors examine the interface between law and violent crises through history and across jurisdictions, bringing together insights gleaned from the Roman republic and Jewish law through to the initial responses to the July 2005 attacks in London. The book examines three unique models of emergency powers that are used to offer a novel conceptualization of emergency regimes, giving a coherent insight into law's interface with and regulation of crisis and a distinctive means to evaluate the legal options open to states for dealing with crises. Particular attention is given to the interface between international law and regulatory mechanisms and emergency powers, as a key element of the contemporary political response to violent crises.

Emergency powers, war, terrorism, human rights, humanitarian law, international law, national security

Abstract:
The paper examines a distinct mechanism - martial law - which was devised in the common law to deal with the need for greater scope of governmental powers in the face of exigencies while maintaining checks and limitations on the exercise of such powers. This, however, is not a mere historical study. As the paper shows, the story of martial law teaches us many valuable lessons that are still very relevant today in the post September 11th world.

The paper starts by reviewing the debates concerning the legal basis for martial law. It seeks to situate the discussion within the parameters of a broader typology of emergency powers that distinguishes among three possible emergency regimes, i.e., business-as-usual, accommodation, and extra-legal. There are two traditional competing accounts of the legal foundations of martial law. According to the dominant view, martial law derives from a more general common law right to repel force by force. An alternative view locates the legal foundation for martial law in the Crown's prerogative. Whereas under the former approach there is one legal system that is applicable in normal times and in times of grave crises, the prerogative approach identifies emergency powers in general and martial law powers in particular as constituting a special system that is geared towards overcoming exigencies. However, that special emergency system is still part and parcel of the legal system and does not operate outside it. Emergencies may invoke the use of extraordinary powers that are not available in ordinary times, but such extraordinary powers are legal powers all the same. Thus, both approaches consider martial law to be a legal mechanism, operating within a broader constitutional framework. A third possible position views martial law as an extra-legal mechanism that is not linked to a common law right or to the prerogative.

The paper than tracks the development of martial law in the United Kingdom and argues that it demonstrates the untenable nature of what I call the assumption of separation, which is based on the belief in our ability to separate emergencies and crises from normalcy. Specifically, the paper demonstrates the difficulties that plague attempts to maintain such separation between normalcy and emergency by relying on mechanisms that are designed to maintain temporal, spatial or communal distinctions. It focuses on the migration of emergency mechanisms not from one legal system to another, but among different territories that constitute a single control system.

martial law, emergency

Abstract:
The institution of the Roman dictatorship has been regarded as the prototype for modern-day constitutional emergency regimes. It has been touted as "perhaps the most strikingly successful of all known systems of emergency government." In the annals of the Roman dictatorship, no one has been more celebrated for his actions as dictator than Lucius Quinctius Cincinnatus. According to tradition, Cincinnatus was made dictator in 458 BC in order to save a Roman force that was besieged by enemy forces. Upon his victory, Cincinnatus stepped down immediately - merely sixteen days after his appointment - relinquished all his special powers and returned to work his land. Cincinnatus's unwavering commitment to serve the republic and his willingness to give up the awesome powers that had been entrusted to him have come to represent the prime example of the dictatorship and the qualities that were expected of a dictator and a leader. What is far less known is that in 439 BC, the aging Cincinnatus was, once again, appointed dictator. This time the reason for his appointment was not a military crisis but rather part of the socio-economic struggle between the Patricians and the Plebs.

There is much that the story of the two dictatorships of L. Quinctius Cincinnatus can teach us about the meaning of the concept of "crisis." This paper focuses on the shift of that concept and the concomitant shift of the special powers designed to overcome particular crises, from a purely military concept to one that encompasses socio-economic elements. Similar to the shift from a dictatorship designed to defend the republic against external, foreign military threats to one that is used in the context of domestic civil unrest, it traces the expanding ambit of "national security" and "war" - concepts that are closely linked to "crisis" - and examines the relationship between the use of emergency powers in the context of violent emergencies and their application in socio-economic contexts. The paper then examines the normalization of emergency powers and their incorporation into the ordinary, normal system both legal and institutional. That pattern also affects our understanding of crises and emergencies as those are no longer exceptional but are increasingly part of the norm.

Emergency powers, dictatorship, war, national security

Abstract:
A significant part of the life of the law has been attempts to balance the competing values of stability and flexibility. Emergencies present the challenge of enabling government to confront the crisis by, if necessary, using special emergency powers and greater flexibility of operation while, at the same time, ensuring that such powers and flexibility do not get out of control and enable government to impose long-term limitations on individual rights and liberties or modify the nature of the relevant constitutional regime.

The paper focuses on A.V. Dicey's treatment of the challenge of balancing stability and flexibility in the context of grave crises. Prof. David Dyzenhaus of the University of Toronto Faculty of Law has recently suggested that Dicey distinguishes between two legal responses to an emergency situation. In the first, the response is the after-the-fact recognition that officials made an excusable decision to act outside of the law because it was necessary that they act and the law, did not provide them with the resources they needed. In the second, Parliament in advance gives to officials resources to deal with emergencies in accordance with the rule of law. Dyzenhaus argues that Dicey prefers the second option and himself takes a similar position.

The paper argues that while Dicey does present two ways of responding to emergency situations, he sees them as complementary, allowing the use of one when the other may be unavailable or undesirable. The paper goes on to tie Dicey's analysis with John Locke's theory of the prerogative, suggesting that Dicey answers a significant problem with Locke's theory.

The article goes on to focus on a closer examination of the ex post ratification component of what I called elsewhere the Extra-Legal Measures model for dealing with emergency powers. Again, the paper does so by using Dicey's discussion of the Act of Indemnity, which is a particular case of ex post ratification. The paper seeks to demonstrate that the critique of the Extra-Legal Measures model as placing public officials in a legal black hole . . . a zone uncontrolled by law misses some of the essential components of the model. Particularly, it misses the fact that, as Dicey puts it, the relief to be obtained [from Acts of Indemnity] is prospective and uncertain. Until the extralegal action is ratified ex post, and potentially even after it is so ratified, the acting public official does not know what the personal consequences of violating the rule are going to be. The more uncertain it is that ratification will be forthcoming, the more uncertain its potential scope, and the greater the personal risk involved in wrongly interpreting either of those is, the greater the incentive for individual actors to conform their action to the existing legal rules and norms and not risk acting outside them.

Abstract:
The metaphor of balancing and the use of “balancing tests” are dominant features in legal discourse. Since the terrorist attacks of September 11, 2001, that metaphor has been invoked regularly to explain the need for a trade-off between liberty and security. This Article focuses on challenges to balancing that are either unique or somehow exacerbated in the context of responding to violent crises. Drawing on cognitive theory of decision-making under conditions of uncertainty it suggests that balancing processes, in general, and those seeking to balance such interests as liberty and security, in particular, are likely to suffer from identifiable biases. This indicates that the outcomes of such delicate and complex balancing acts are likely to be distorted and thus sub-optimal. While the theory does not, necessarily, make claims as to what the equilibrium between the competing interests ought to be at any given context - for example, it does not seek to determine what an acceptable level of risk from terrorist attacks ought to be - it does suggest that once such a decision is made, the analysis that decision-makers perform in particular cases and in adopting specific counter-measures is likely to be significantly flawed. Perhaps even more importantly, it suggests that such flaws are systematic and that they are going to be tilted in one direction - i.e., towards more security - than the other, i.e., more liberty. The systematic nature of the biases that are identified suggests that failure to address them may turn the mistakes and errors that are discussed in the paper into cognitive pathologies, i.e., decision methods that are not only mistaken but irrational.

balancing tests, cognitive theory, Heuristics, national security

Abstract:
In times of crisis there is an unmistakable tendency to augment and extend the powers of the executive branch. This centralizing tendency has been exhibited in numerous legal systems and through varied kinds of crisis. More recently, similar trends have been much in evidence in the United States, and a corresponding academic discourse defending and extolling the virtues of such augmentation has emerged. This Article is skeptical of the virtues of such advice and its ultimate policy benefits. We assert that there are substantial dangers to the centralization of crisis powers in times of emergency. These tendencies hold particular perils for the democratic state. Moreover, the rush to create or cement decision and review making hierarchies can be antithetical to the project of utilizing the strengths of rule of law based societies to respond to the challenges posed by violent actors. The purported benefits of excluding, or at best sidelining, the courts from review of executive actions of crisis regulation are particularly illconceived. Such proposals consistently fail to engage with the importance of across-the-board institutional legal engagement with state action in times of crisis. The success and value of such engagement cannot be measured from the crisis vantage point. Rather it requires an assessment beyond the moment of exception, factoring in a return to normalcy and the impact on law and legal institutions in the post-crisis phase. We assert that scholars advocating for exclusive executive supremacy in times of crisis fail to measure the harms that may be caused by inept or illegal state action, not only as experienced by individual victims but to the broader project of discouraging and dissuading the resort to group based violence.

executive power, crisis, courts, executive sumpremecy