80 Pages Posted: 9 Sep 2005 Last revised: 11 Jun 2010
Date Written: December 28, 2005
Executive claims of emergency powers have received significant attention over the decades beginning with World War II, again toward the close of the Cold War, and now in the most recent era of the global struggle with terrorism. The position that I stake out is one that I believe is relatively simple to understand and is slightly different from most others. It is that a claim of emergency power can be tolerated so long as the recognition of it and the limits on it are both contained within the existing mandate to the executive. To demonstrate how this works, I use some familiar examples, necessity as a defense to property seizure or destruction, martial law, and the allowance for exigent circumstances under the fourth amendment. From those, it is not much of a reach to talk about measures that have been taken in the name of national security and counter-terrorism. Executive detentions, torture, ethnic profiling, and government claims for secrecy can all be analyzed more effectively if we ask whether the claim of emergency is cognizable in existing mandates and carries its own built-in limitations. For example, ethnic profiling (recognized as permissible in a hypothetical prison race riot) is different from the use of torture (which has been prohibited by international convention and statute precisely to prevent its use during times of emergency).
Keywords: Emergency, separation of powers, martial law, executive detention
Suggested Citation: Suggested Citation
McCormack, Wayne, Emergency Powers and Terrorism (December 28, 2005). Military Law Review, Vol. 185, p. 69, 2005; U of Utah Legal Studies Paper No. 05-12. Available at SSRN: https://ssrn.com/abstract=747426