Project and content management for Contemporary Authors volumes
WORK TITLE: Permanent State of Emergency
WORK NOTES:
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BIRTHDATE:
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https://www.lakeheadu.ca/users/A/ralford/node/21753
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PERSONAL
Born in Ottawa, Ontario, Canada.
EDUCATION:Carleton University, B.A., 1998; University of Amsterdam, M.A., 2000; New York University, J.D., 2005; University of Oxford, M.St., 2011; University of South Africa, Ph.D.
ADDRESS
CAREER
Lawyer, educator, and writer. Called to the bar of Ontario; attorney and counselor-at-law for New York State. Former judicial clerk for the Honorable Rosemary S. Pooler of the United States Court of Appeals for the Second Circuit and for the Honorable Robert L. Carter of the United States District Court for the Southern District of New York; worked for the firm of Cleary, Gottlieb, Steen & Hamilton, New York, NY, and Brussels, Belgium; Ave Maria School of Law, Naples, FL, assistant professor of law, beginning 2010; University of Victoria, Victoria, British Columbia, Canada, visiting assistant professor in the Faculty of Law, 2013-14; Lakehead University, Thunder Bay, Ontario, Canada, associate professor of law, 2014—.
WRITINGS
Contributor to professional journals.
SIDELIGHTS
Ryan Alford is a Canadian lawyer and educator who practiced law in the United States in New York State and in Brussels, Belgium, before he began his career as a university professor. As a lawyer, he primarily worked in international litigation, arbitration, and mergers and acquisitions laws. His primary field of research is legal history, the rule of law, and legal rights during public emergencies. Alford identifies himself as a person with a psychiatric disability so he can contribute to the visibility of diversity of the bar, and he advocates for persons with disabilities.
A contributor to professional journals, Alford is the author of Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law. The book addresses Alford’s belief that the failure of the United States to address human rights abuses is a primary symptom of a looming constitutional crises. These abuses, according to Alford, stem primarily from the aftermath of the September 11, 2001, terrorist attacks and subsequent decisions made by the U.S. government to indefinitely detain and torture prisoners at the detention camp in Guantanamo Bay, Cuba. Furthermore, Alford points out that the United States has been involved in targeted killing and mass surveillance that require an expansion of executive authority that negates the rule of law, and he stresses that the United States has tested the limits of international human rights law. He further indicts the U.S. Congress and courts for facilitating what he sees as the breakdown of U.S. constitutional order. As a result, writes Alford, the U.S. presidency is moving toward an elective dictatorship.
In the book’s preface, Alford notes that he felt “compelled” to write Permanent State of Emergency due to two court cases and explains: “These lawsuits bracketed the assassination of a US citizen on the orders of the president: the first attempted to block the drone strike, and the second attempted to hold the president accountable for the murder. Both failed.” Alford goes on to describe how the cases profoundly affected him. One issue that particularly disturbed him was how the courts supported the assassination because the victim was identified as a “foreign target.” Alford also noted that the president’s administration proposed that the decision was not reviewable, which was upheld by the courts despite the fact that “the executive had never argued that the killing was an act of war or that the citizen was a traitor—or even that he had been accused of a crime,” as Alford writes in the book’s preface.
Alford begins Permanent State of Emergency with a discussion of the basic requirements of the rule of law and its history, which he traces to the British fighting the monarchy’s absolute rule. He goes on to discuss the separation of powers as a primary basis to the rule of law’s resiliency in the United States prior to 1940 and then the loopholes that appeared in various acts passed by the U.S. Congress in the following years. Alford then examines how the presidency has gained significant expanded authority since the terrorist attacks of 9/11 and the George W. Bush administration while the courts supported this expansion of powers, to the detriment of the rule of law. Alford also dedicates a chapter to the Congress’s failure to provide strong oversight to protect the rule of law. In his concluding arguments, Alford acknowledges that Americans still have significant political and social rights but argues that the freedom to violate these rights at will means the United States cannot be described as a functional rule of law state.
“Alford’s utterly reasonable and objective study is a compelling, important call to restore democratic balance,” wrote a Publishers Weekly contributor. Jane Chong, writing for the Los Angeles Review of Books website, noted: “Alford’s almost exclusive focus on the mechanics of various forms of institutional corruption presents a striking contrast with more conventional … accounts of the dynamics that tend to expand executive power in times of foreign crisis.”
BIOCRIT
BOOKS
Alford, Ryan, Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law, McGill-Queen’s University Press (Montreal, Quebec, Canada), 2017.
PERIODICALS
Publishers Weekly, April 3, 2017, review of Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law, p. 65.
ONLINE
Cato Unbound, https://www.cato-unbound.org/ (December 3, 2017), “Ryan Alford.”
Lakehead University Website, https://www.lakeheadu.ca/ (December 3, 2017), faculty profile.
Law and Politics Book Review Online, http://www.lpbr.net/ (October 1, 2017), Daniel N. Hoffman, review of Permanent State of Emergency
Los Angeles Review of Books, https://lareviewofbooks.org/ (December 7, 2017), Jane Chong, “From Emergency to Monopoly: Presidential War Games,” review of Permanent State of Emergency.
University of Victoria, Faculty of Law Website, https://www.uvic.ca/law/ (December 3, 2017), faculty profile.
Ryan Alford is Assistant Professor at the Bora Laskin Faculty of Law at Lakehead University. Prior to joining Lakehead, he was Visiting Assistant Professor at the University of Victoria Faculty of Law, where he was awarded the First Year Class Teaching Award.
Dr. Alford received his doctorate in public, constitutional, and international law from the University of South Africa. Prior to that, he was awarded his master’s degree from the University of Oxford and his law degree from New York University. He was called to the bar of Ontario and is an attorney and counselor-at-law of the state of New York.
Upon receiving his law degree, he served as a judicial clerk at the Southern District of New York and the United States Court of Appeals for the Second Circuit. After entering practice he worked for a global law firm in their New York and Brussels offices, focusing on international arbitration, transnational litigation, and cross-border mergers and acquisitions.
Dr. Alford’s research focuses on the rule of law and legal rights during public emergencies. His work has been cited in academic journals such as the Journal of Criminal Law and Criminology and the Yale Law Journal, as well as in legal treatises and court opinions.
Ryan Alford
Visiting assitant professor
Ryan Alford
Tel: 250-721-8866
Fax: 250-721-8146
Faculty of Law
University of Victoria
PO Box 1700, STN CSC
Victoria, BC V8W 2Y2
Map
I am a Visiting Assistant Professor at the University of Victoria Faculty of Law for the 2013-2014 academic year. I will be teaching Contracts I & II, Restitution, and Commercial and Consumer Law.
Before I began teaching law I practiced in Manhattan and Brussels; I worked mainly in the areas of international litigation, arbitration, and mergers and acquisitions law. Prior to that, I clerked at the federal trial and appellate courts in New York.
My main field of research is legal history, which also informs my teaching significantly. I have recently published on the history of the regulation of the legal profession, the development of constitutionalism, and the origins of rule of law. In my work, I attempt to demonstrate that an understanding of this history can inform current debates.
I choose to openly identify as a person with a psychiatric disability in order to do my part in contributing to the visibility of the diversity of the bar. I advocate for persons with disabilities and participate in activism that promotes inclusion, understanding, and respect.
Education
BA - Carleton (1998)
MA - University of Amsterdam (2000)
JD - New York University (2005)
MSt - University of Oxford (2011)
Ryan Alford is an Assistant Professor at the Ave Maria School of Law, having joined the faculty in 2011 from Oxford University. His research interests relate to questions in Anglo-American legal history between 1558 and 1820, and at present focus on the relationship between seventeenth-century constitutionalist theory, the English libertarian tradition, and the American Revolution. His most recent article on this topic (a more expansive treatment of the ideas explored in his July, 2011 lead essay) is forthcoming in the Utah Law Review, available online here.
Alford graduated from the Faculty of Law of the University of Oxford with the degree of Master of Studies in legal research; an edited version of his dissertation on the Star Chamber’s regulation of the Elizabethan and Jacobean legal profession is forthcoming in the American Journal of Legal History. He received his Juris Doctor degree from New York University, and he received the degree of Master of Arts in discourse and argumentation studies from the University of Amsterdam (with a focus on legal argumentation), he is also a graduate of Carleton University, where he received a Bachelor’s degree in linguistics.
Professor Alford clerked for the Honorable Rosemary S. Pooler of the United States Court of Appeals for the Second Circuit and for the Honorable Robert L. Carter of the United States District Court for the Southern District of New York. He is a member of the New York bar and practiced law in New York City and Brussels, Belgium with the firm of Cleary Gottlieb Steen & Hamilton, primarily in the areas of international arbitration and cross-border mergers and acquisitions.
Dr. Ryan Alford
Associate Professor
Department:
Bora Laskin Faculty of Law
Email:
ralford@lakeheadu.ca
Phone Number:
+1 (807) 346-7806
Office Location:
PA1008D
Office Hours:
Tuesday afternoons 1:30-5 pm.
Academic Qualifications:
Dr. Alford received his doctorate in public, constitutional, and international law from the University of South Africa. He recently published a book based upon his research, Permanent State of Emergency: The Demise of the Rule of Law in the United States with McGill-Queens University Press -- most of his published papers are available on SSRN; he discusses the use of executive power in the Trump Administration and its effects on the rule of law frequently on his blog.
Prior to that, he was awarded his master’s degree from the University of Oxford and his law degree from New York University. He was called to the bar of Ontario and is an attorney and counselor-at-law of the state of New York.
Date joined Lakehead:
July 2014
Previous Teaching/Work:
Upon receiving his law degree, he served as a judicial clerk for the Honorable Robert L. Carter of the Southern District of New York and the Honorable Rosemary S. Pooler of the United States Court of Appeals for the Second Circuit. After entering practice he worked for the firm of Cleary, Gottlieb, Steen & Hamilton in their New York and Brussels offices, focusing on international arbitration, transnational litigation, and cross-border mergers and acquisitions.
Prior to joining the Bora Laskin Faculty of Law, he was Visiting Assistant Professor at the University of Victoria Faculty of Law, where he was awarded the First Year Class Teaching Award.
Research Interests:
Dr. Alford’s research focuses on the rule of law and legal rights during public emergencies. His work has been cited in academic journals such as the Journal of Criminal Law and Criminology and the Yale Law Journal, as well as in legal treatises and court opinions.
Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law
264.14 (Apr. 3, 2017): p65.
Copyright: COPYRIGHT 2017 PWxyz, LLC
http://www.publishersweekly.com/
Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law
Ryan Alford. McGill-Queen's Univ. (CDC, U.S. dist; GTW, Canadian dist.), $29.95 (336p) ISBN 978-0-7735-4919-7
As the world watches a new U.S. president seemingly wedded to rule by executive order, this timely and prescient debut by Lakehead University law professor Alford starkly argues that America is no longer a rule-of-law state because traditional legislative and judicial checks against presidential authority have been completely corroded by War on Terror prerogatives. What could have been a dry legal text is instead a lively, informative, and at times very frightening history of tensions among the three branches of American government. First debated in the Federalist Papers of the late 18th century, these tensions have continued to resonate through crises as diverse as slavery, Japanese-American internment during World War II, and the Watergate and Iran-Contra scandals. Alford convincingly argues that the 9/11 attacks created the pretext for a massive executive branch overreach that centralized decision-making on issues including indefinite detention, torture, Guantanamo Bay, drone strikes, and war declarations in the Oval Office. Concluding that the U.S. government is now an elective dictatorship where systemic violations of basic rights can be carried out with impunity, Alford's utterly reasonable and objective study is a compelling, important call to restore democratic balance. (June)
Source Citation (MLA 8th Edition)
"Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law." Publishers Weekly, 3 Apr. 2017, p. 65. General OneFile, link.galegroup.com/apps/doc/A489813749/ITOF?u=schlager&sid=ITOF&xid=f0e23136. Accessed 7 Dec. 2017.
Gale Document Number: GALE|A489813749
Permanent State of Emergency
Unchecked Executive Power and the Demise of the Rule of Law
By Ryan Alford
Published 05.05.2017
McGill-Queen's University Press
352 Pages
From Emergency to Monopoly: Presidential War Games
By Jane Chong
JULY 23, 2017
THE LATE HISTORIAN Arthur Schlesinger Jr. is remembered for warning of the expansion and abuse of executive power in his classic 1973 book The Imperial Presidency, published just a year before Richard Nixon resigned in disgrace. But Schlesinger also strongly believed the president’s “heroic leadership” was essential to American democracy, particularly in times of crisis.
Critics like Louis Fisher therefore consider Schlesinger part of the pantheon of post–World War II scholars that unduly promoted “the cult of the strong Presidency” (Schlesinger himself expressed some regret about contributing “to the rise of the presidential mystique”). But this criticism has done little to undercut Schlesinger’s influence. Half a century on, his particular twist on the Hamiltonian conception of the energetic executive lies at the center of much of the debate over hard US national security choices.
This is the tradition Ryan Alford sets himself against in Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law. It is from a position of deliberate disinterest in institutional personality, particularly presidential personality, that Alford builds his account of the lawlessness of US counterterrorism efforts since the 9/11 attacks and charts our country’s official passage across the “threshold between an imperial presidency and an elective dictatorship.”
Because of this disinterest, the executive branch is the subject of Alford’s book, and yet it remains a vague and blurry presence throughout. Alford does not attempt to describe the national security pressures or political forces that inform the president’s decision-making; he never delves into the life of the executive mind. Nor is he particularly interested in how the changing global threat landscape or the rise of the modern administrative state have contributed to the expansion of executive power. Alford details the executive’s drive for power as a desire for power for its own sake, nothing more.
It is as though Alford has attached a shadow roll to the noseband of his work, restricting his analysis and the reader’s field of vision to what the executive does without much of the why. This is an interesting and important choice that dictates the shape of the whole book — and it is a reminder that the schism between the global human rights movement and much of the US national security establishment begins with totally different starting premises about what is relevant in assessing the legality of executive action.
The book is best read as the US edition of an international human rights law manifesto, one that builds from two broad premises the conclusion set out in its title: that our executive branch is out of control, and that the American rule of law has degenerated beyond recognition. Drawing in part on the International Covenant on Civil and Political Rights, Alford declares that at the very core of the rule of law are a set of “fundamental human rights” that are “non-derogable” by the executive, even in crisis, and even if Congress has passed a statute authorizing the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the 9/11 attacks. He then argues that these rights are violated, and the rule of law damaged, when the executive is permitted to claim the broad discretionary power to kill, to torture, or to indefinitely detain.
Alford’s account of the ebb and flow of executive power is not particularly unusual, except that, under Alford’s definitions, the executive power cycle doubles as a death-cycle for the rule of law. This shifting concept proved its resiliency from 1787 to 1940; was overtaken by an overreaching executive during the Cold War, 1941 to 1968; was painstakingly “re-implemented” by Congress and the courts from 1974 to 9/11; and was subjected to wholesale destruction after 9/11 — this last bit a disaster from which we cannot expect meaningful recovery “in the near future.”
But his “death-cycle” analysis suffers from selective bias. Did the rule of law really keep its shape from 1787 to 1940, as Alford asserts, or did we just know less or care less back then? How to square his assertion with, say, the systematic US torture of Filipino prisoners in clear contravention of the laws of war during the Philippine War (1899–1902)? How to understand the United States’s refusal to discipline torture mastermind Major Edwin F. Glenn, inventor of the now all-too-familiar “water cure,” beyond a fine of $50 and one-month suspension from his post?
The deeper criticism, though, is that by Alford’s lights, the vaunted “rule of law” doesn’t seem to do very much; it is a thing to which much is done. It is a measure of the health of our democratic republic (“the metric to judge the United States”), and not really the means by which our health is maintained or our strength can be recovered. He seems to see the rule of law as a rheostat — its wire tightly coiled around the core of our legal system for the explicit purpose of calibrating the current of executive power — but his conclusions suggest that this resistor is not a very good one.
As a consequence, there’s little room in Alford’s theory of US regression for what the liberal constitutional theorist David Dyzenhaus describes as the “virtuous cycle of legality,” a hopeful vision of law’s accretion over time wherein what is mere public policy today is converted into “public, legally applicable standards” and institutional reforms tomorrow. And Alford seems to reject outright the simpler idea of legal resurgence. In 2004, shortly after the United States invaded Iraq, Schlesinger lamented that “the Imperial Presidency redux is likely to continue messing things up,” but added this crucial bit: “Then democracy’s singular virtue — its capacity for self-correction — will one day swing into action.”
Alford’s gloom is not wholly unwarranted. The most compelling sections of his book detail those features of our post-9/11 world that militate against optimism. Justice is delayed or precluded even on issues everyone agrees on. It took over a decade to free all 22 of the Uighurs whom the US government conceded, as early as 2003, were wrongly locked up at Guantanamo. And despite the consensus that, in President Obama’s words, “We tortured some folks,” in clear violation of constitutional and international law, it has proven impossible to hold anyone accountable for abuses committed in the name of counterterrorism. This summer, the Supreme Court ruled that six undocumented immigrants held for months without bail in a Brooklyn prison as part of the FBI’s wide-ranging terrorism investigation in the aftermath of 9/11 and allegedly subjected to abuse by prison guards — including broken bones — could not sue federal officials after the fact for money damages. Those seeking to fit this latest installment into the larger pattern of major decisions insulating the executive branch’s counterterrorism policies from even ex post judicial scrutiny will find chapter four of Alford’s book depressingly useful.
Ultimately, though, because of its bright lines and broad-brush analysis, the book is best read as a helpful supplement to, rather than substitute for, other post-9/11 legal narratives. For example, what lies beneath Congress’s abdication of “all responsibility for overseeing and restraining the executive’s powers” on indefinite detention and aggressive executive war-making? The answer is “campaign financing by the military-industrial complex.”
As for the federal courts, Alford explains that they have used doctrines of deference to tie themselves to the mast because of a corroded judicial appointment process; recent presidents have systematically selected and elevated judges who actively resist constraining executive power. Alford’s almost exclusive focus on the mechanics of various forms of institutional corruption presents a striking contrast with more conventional, Schlesingerian accounts of the dynamics that tend to expand executive power in times of foreign crisis — such as Congress and the courts’ cowardice and lack of confidence in the face of a president asserting his superior security expertise.
In the end, Alford attributes our permanent state of emergency and rule of law failures to institutions that have changed too much, but in a world of evolving threats and evolving technologies, the opposite seems just as likely to be true: our institutions have changed, and moved, too little. After all, it is stagnation that has served as the most dramatic source of executive power expansion since the 9/11 attacks. Sixteen years into the US fight against terrorism, the executive branch presses on against a terrorist group that did not even exist at the time the statute authorizing force was enacted. Congress has still not moved to amend that statute, the longest-running authority of its kind in American history, and because the drone-dead do not file lawsuits like the Guantanamo-detained, the courts have not been forced to respond.
Against this backdrop, there is reason to hope that Alford is wrong at the end of his book when he describes Donald Trump’s election as the start of a traumatic new chapter in the “ever-increasing concentration of political power within the presidency.” If constitutional psychology matters at all, if our institutions have complex personalities of the kind Schlesinger so memorably described, perhaps this president’s inability to command the trust of Congress and the courts will itself force their courage. Perhaps Trump’s installment in the White House marks a new and unprecedented kind of emergency, one that need not strengthen the executive security monopoly Alford describes, but one that could finally break it.
¤
Jane Chong is deputy managing editor of Lawfare.
France: the permanent state of emergency
New anti-terror law frightens citizens already living under suspicion
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Anne-Sylvaine Chassany in Paris
OCTOBER 3, 2017 71
In May 2015, Halim Abdelmalek had an unusual encounter as he sat on his motorbike near his mother’s home in the 13th arrondissement of Paris. Talking to his wife Malika on the telephone, a police officer walked towards him with a camera, took several pictures and ran away.
Shortly after, Mr Abdelmalek was interrogated by anti-terror police, who informed him that he had been spotted near the home of the editor of Charlie Hebdo, the satirical magazine that had been attacked by armed Islamist extremists earlier that year — in the first of a new wave of deadly terror attacks in France. Mr Abdelmalek said he did not know the location’s significance. He was released, for lack of evidence.
Six months later, in the wake of the murders of 90 concertgoers in the Bataclan venue and the killing of 40 others in streets and cafés by Isis suicide bombers, Mr Abdelmalek received a letter from the interior ministry asking him to report to his local police station — which he did. The 35-year-old father of two realised that the burden of proof was no longer on the police, but on him.
The day before, president François Hollande had declared a state of emergency. Mr Abdelmalek was told he was a terror suspect because he attended a mosque considered “radical” by the police and because his name had appeared in a stolen cars case involving suspected Islamists (he was in fact only a witness in the investigation).
His presence near Charlie Hebdo editor’s home was also deemed suspicious. Mr Abdelmalek, the son of Algerian immigrants who was in trouble with the police when he was a teenager but has kept a clean record ever since, was to stay home every night, report three times a day to the police and not leave Vitry-sur-Seine, a suburb south of Paris.
“I thought ‘wow’. It was enormous. I was in shock,” recalls Mr Abdelmalek, who has since been exonerated. “It’s as if they had put a tag on my face: ‘bearded terrorist’.”
Police and worshippers outside a mosque, in the Paris suburb of Montfermeil, was closed after a court found that it failed to meet security standards © AFP
Mr Abdelmalek is one of 439 French citizens — most of them Muslims — who have been placed under house arrest as part of the state of emergency, according to the interior ministry. The majority have been cleared, although 69 individuals remain under house arrest. The state of emergency, which has been extended six times, has also allowed 4,336 police raids on homes and mosques, leading to the closure of 16 mosques.
Emmanuel Macron, who was elected president in May, had been planning to let the emergency provision expire. During the campaign, the liberal politician sided with a parliamentary report that concluded that the expansion of police powers had produced only “modest” results. In his book, Revolution, published a year after the Bataclan attack, Mr Macron wrote that recent laws boosting the powers of counter-terror judges and surveillance tools for intelligence agencies were sufficient to tackle the terror threat.
However, since coming to power, the 39-year-old leader has changed his position dramatically. Before the decree expires on November 1, he is planning to transform the bulk of the state of emergency powers into ordinary law.
Mr Macron’s shift underlines the intense pressure felt by the French authorities after Islamist-related terror attacks have left 239 dead in the past two years. France is the number-one target for Isis in the west, accounting for 30 per cent of attacks or foiled plots related to the extremist group, according to the Paris-based Center for the Analysis of Terrorism. After the fatal stabbings of two women near Marseille train station by a Tunisian citizen on Sunday, far-right National Front leader Marine Le Pen, who lost to Mr Macron in the presidential runoff, has requested he toughen up security measures to tackle “acts of war”.
Centre-right politicians have pushed for an extension of the state of emergency. However, critics say Mr Macron’s plan to make some of its measures permanent — in a bill to be adopted by parliament later today — will enshrine infringements of civil liberties. Judges and lawyers warn it will further erode the presumption of innocence in matters of terrorism and, as such, will “contaminate” the rule of law and the justice system as a whole. They also note it could lead to more police mistakes, with suspects identified using sometimes flimsy, anonymous intelligence.
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Amnesty International says the legislation will “trample” the very rights that Mr Macron was “elected to uphold”. Jacques Toubon, the country’s ombudsman in charge of defending civil liberties, warned it would threaten social cohesion by stigmatising Muslims, who account for 7 per cent of the population.
“Terror attacks have trapped French politicians in a security spiral from which they can’t get out, they don’t want to be cast as impotent,” says William Bourdon, Mr Abdelmalek’s lawyer, who points out that the state of emergency powers have led to only 20 terror-related prosecutions. “It’s true everywhere, but it is most acute in France. This mindset is slowly reversing the burden of proof on to defendants.”
First introduced in 1955, when France was convulsed by the Algerian war of independence, the state of emergency provision gives tremendous powers to police. Officers are allowed to raid and search homes day and night, detain and place suspects under house arrest, and shut down organisations if they are deemed a threat to public order. They can operate without warrants or approvals from a judge, and largely on the basis of unconfirmed intelligence reports and anonymous testimony. Of all the European countries that have suffered attacks — the UK, Belgium, Spain, Germany — France has been the only one to impose a state of emergency.
The government says it has no choice in the face of terror groups that exploit the weaknesses of western legal systems that are more protective of defendants.
“Looking at the number of cases our intelligence services are working on, I tell myself that the threat is still extremely high,” Gérard Collomb, interior minister, told parliament in July. Potential terrorists are no longer part of structured cells like the one behind the Bataclan attack, he said. Police are now faced with isolated individuals inspired by Isis propaganda who are therefore difficult to identify. “We moved from an exogenous threat to an endogenous one,” Mr Collomb said.
Rescue workers with a woman caught up in the violence at the Bataclan during the November 2015 terrorist attacks in Paris © AP
In February, a couple planning an imminent suicide bombing in the centre of Montpellier, southern France, was arrested after an impromptu police raid of the mosque they attended, according to Coralie Dubost, one of the cohorts of recently elected MPs under Mr Macron’s party, La République en marche, and who sits on the National Assembly commission examining the bill.
“We’re not talking about big numbers. There are perhaps 20 dangerous individuals. But we can’t miss them because they can cause big harm,” says Ms Dubost, a former human rights lawyer. “Yes, this is disrupting our judicial culture. But we need to adapt to the threat. We need a mechanism that allows officers to clear doubts very quickly.”
The new legislation is not as sweeping as the full state of emergency, which covers any threat to public order, not just acts of terrorism. MPs have also added safeguards and toned down some measures. Suspects will have a wider perimeter to move within and will be given the choice of wearing electronic bracelets. But critics argue that judges will have little power to counter the so-called notes blanches or white notes, the unsourced intelligence reports from that form the basis of their decisions.
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Ms Dubost admits the legislation would be dangerous in the wrong hands. “I wouldn’t want to see the National Front use it,” she says. The government has included a sunset clause in 2020, to allow a sweeping review of the measures two years before presidential elections.
She also acknowledges that the quality of intelligence can be a problem, including bias among some officers. “They will see a beard and jump to conclusions,” she says. “We’re not saying the legislation is perfect.”
Since 2008, French counter-terrorism services have undergone multiple overhauls that resulted in thinning out a network of field officers built up over half a century. A parliamentary report last year concluded too much emphasis has been placed on high-tech tracking of “strong signals” from the top echelons of terror groups, such al-Qaeda, at the expense of low-level, French-born terrorists.
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Opponents to Mr Macron’s anti-terror bill also fear the legislation will revive a form of behaviour that marked the darkest hours of France’s occupation by the Nazis: denunciation.
It took some time for Tony Gelé, a 34-year-old father of two who converted to Islam when he was a teenager, to understand why special forces blew up the door of his apartment with explosives at 4am on November 20 2015.
The four-hour search, in front of his screaming wife and children, left Mr Gelé with a wound on his skull. Police escorted him out handcuffed in front of neighbours. He was interrogated for 30 hours and placed under house arrest until February 26, when the order was lifted. Mr Gelé, a member of a shooting club, learnt later he had been reported by the club’s president. “Officers had come to check out the licences and had asked about members with ‘different religions’,” Mr Gelé says. “The club’s president wanted to avoid problems.”
Coralie Dubost, a newly elected MP for Emmanuel Macron's En Marche movement, says the laws must adapt to the threat © Leo Novel/FT
French courts have ruled that Mr Gelé and Mr Abdelmalek’s house arrests were not justified. But their lives have been upended — the former’s health has been impaired and the latter’s mechanic business has struggled. They have yet to receive any damages from the state.
Perhaps even more than house arrests, though, the focus on mosques has fuelled a feeling that the measures were not just targeting terrorists, but were being used as a way to put France’s Muslim community on notice.
The police have closed a number of mosques controlled by Salafists, a radical form of Islam which some academics such as Gilles Kepel, a Sciences Po professor advising Mr Macron, believe have provided an intellectual basis for
jihadism.
“But who is to judge ideas? This is extremely dangerous,” says Vincent Brengarth, a lawyer who represents a Salafist mosque in Ecquevilly, north-west of Paris. “We’ve entered an era of widespread suspicion.”
The searches on mosques, at times violent in the first few months of the state of emergency, has caused dismay among many Muslims because they appear to be indiscriminate, according to Mohammed Henniche, a representative of several mosques in one suburb of northern Paris. “Regulars wonder: I am attending a radical mosque? How come I didn’t notice anything?” he says.
Mohammed Henniche, a representative of several mosques in a suburb of Paris, says the police actions have sown fear among congregations © Leo Novel/FT
He tells of the shock when one of the mosques under his supervision, in Stains, was closed because a known terrorist, Fabien Clain, had attended it and because the imam once asked in a sermon “to pray for our brothers in Syria”, according to the “white notes” used to justify its closure.
Mr Henniche pleaded in court that the imam did not know Mr Clain and that his remarks on Syria were a reference to civilians in the war-torn country, not Isis fighters. But it was not until he offered to sack the imam that authorities considered reopening the mosque.
Mr Henniche has also offered to install video surveillance in the prayer room so that it would deter would-be jihadis from attending the mosque. The new imams have also vowed to highlight the danger of radicalisation in their sermons. The mosque is to reopen this month.
“They say they are pursuing terrorists, but it feels like everybody is suspected of being guilty until we can prove otherwise,” Mr Henniche says.
Security: Legal shift to enshrine anti-terror powers in law
The counter-terrorism bill, which the French parliament is expected to adopt later today, is the seventh piece of legislation since 2012 to boost the powers of police and intelligence services, as the country grapples with a pervasive threat of homegrown jihadis.
The latest law is designed to absorb exceptional powers used under the state of emergency into ordinary law. The main feature of these powers is the near absence of the judiciary and the lack of tangible evidence required in police decision-making. The interior ministry will be able to restrict movement and search people and vehicles within security perimeters that it can impose if it perceives a terror-related threat. Private security guards will also be granted similar powers under police supervision.
The interior ministry will be able, based on intelligence reports, to shut down “places of worship” for up to six months if it detects ideas, theories, sermons or activities that encourage or cause violence or terror acts in France or abroad. Those religious sites will have two days to lodge an appeal to suspend the decision.
The state can restrict the whereabouts of individuals suspected of having sympathies for, or links to organisations or individuals that encourage, facilitate or participate in terror acts. Suspects can ask to wear electronic bracelets if they want to live a less restricted life. They are still supposed to be able to continue their jobs. The restrictions can be renewed after six months for up to one year with “new or complementary” information.
Police will also be able to raid homes but will have to request authorisation from a judge. The bill includes a sunset clause for December 31 2020 for raids and house arrests. Critics say that after three years, the measures, which mostly affect France’s population of around 4m Muslims, will come to feel “normalised” for a majority of French nationals.
PERMANENT STATE OF EMERGENCY: UNCHECKED EXECUTIVE POWER AND THE DEMISE OF THE RULE OF LAW
Vol. 27 No. 8 (October 2017) pp. 126-130
PERMANENT STATE OF EMERGENCY: UNCHECKED EXECUTIVE POWER AND THE DEMISE OF THE RULE OF LAW, by Ryan Alford. Montreal: McGill-Queen’s University Press, 2017. 333pp. Cloth $34.95. CAD. ISBN: 978-0-77-354919-7.
Reviewed by Daniel N. Hoffman, Professor Emeritus, Johnson C. Smith University. Email: guayiya@bellsouth.net.
This book, by Canadian law professor Ryan Alford, adds to a growing body of literature about the weakening of traditional legal and institutional checks that once hemmed in the U.S. executive branch. The study is especially distinctive in its focus on a conception of the rule of law drawn from international materials.
The preface states, with disapproval, that “there is now a bipartisan consensus on the desirability of an elective dictatorship over foreign affairs and national security” (p. xiii). It concludes, “a country that has exited from constitutional governance is no longer self-correcting. If the rule of law is to be restored in the United States, this will likely require significant efforts by the international community …” (p. xiv).
The introductory chapter begins with assessments by UN Special Rapporteur Philip Alston, Amnesty International and Human Rights Watch of US responses to the 9/11 attack: they agree that measures such as drone killings, torture, and indefinite detention violate international humanitarian law. Alford argues that neither the Obama administration, the courts, or Congress provided effective legal remedies. Instead, the courts and Congress implicitly accepted increasingly bold claims of plenary executive power. The rule of law principles effective prior to 9/11 have been abandoned, and the other branches can no longer effectively oversee executive action.
Chapter 1 explores the minimum requirements of the rule of law, a concept that is traced back to British history and the struggle against absolute monarchy. Alford relies on Dicey’s definition of the rule of law, which is defined as the absence of prerogative and arbitrary power, equality before the law, and duty of officials to obey the laws. The UN has endorsed this concept, with the added proviso that accountability must be “consistent with international human rights norms and standards” (p. 17). Despite intense jurisprudential debate over which substantive rights are protected, the core principle of legality—rules of general application and neutral adjudication—is not controversial. The International Commission of Jurists has emphasized the importance of careful legislative delineation of executive powers and oversight of their exercise, as well as review and remediation by an independent judiciary. The author notes that, “This jurisdiction must extend to every possible claim of infringement of non-derogable human rights (Non-derogable rights are rights recognized under international law that a nation cannot violate under any circumstances (p. 17).) by the executive, and includes the power to determine whether evidence sought from the government by the plaintiff can be properly withheld in the interest of state security.” (p. 26). The recent growth of executive powers rejects the core principles of the rule of law and subverts the US Constitution. [*127]
Chapter 2 attests to the resiliency of the rule of law before 1940, protected by the separation of powers. The abandonment of isolationism led to FDR and his successors to successfully claim extensive new powers, at the expense of civil liberties. Between 1950 and 1968, the state of emergency initially created by Pearl Harbor continued into the Cold War. With the creation of the national security state, temporary infractions of the rule of law threatened to yield its permanent demise. Limited inter-branch checks on executive power survived. However, the checks were strengthened after the crises of Vietnam and Watergate. The author points out, “It was under President Nixon that the American executive began to elaborate and act upon theories of its inherent powers …” (p. 44). Ultimately, Congress responded with the War Powers Resolution, measures against impoundment, the pocket veto, and enhanced oversight of the intelligence agencies. Additionally, loopholes were closed in numerous broad grants of discretionary power from the Cold War era such as the Privacy Act of 1974, amendments to the Freedom of Information Act, the Non-Detention Act of 1971, the National Emergencies Act of 1974, the International Emergency Economic Powers Act of 1977, and the Foreign Intelligence Surveillance Act of 1978. Meanwhile, the courts resisted executive overreach and ruled against warrantless wiretapping and Nixon’s withholding of incriminating tapes from the Special Prosecutor, eventually leading Nixon to resign.
Chapter 3 recounts the post-9/11 drive of the Bush administration for expanded executive authority, led by Dick Cheney, Donald Rumsfeld, and others who had long deplored the post-Watergate reforms. The first fruit of their campaign was the 2001 Authorization for Use of Military Force. Although ostensibly limited to actions against “those” directly involved in the 9/11 attacks, it left the executive branch free to determine who those were. Signing statements and confidential Office of Legal Counsel (OLC) memoranda were invoked to interpret the AUMF far more broadly than Congress had intended to cover the threat of terrorism from any quarter. President Obama subsequently embraced most of these interpretations. Alford argues, “On this basis, the war on terror, itself an expansion of delegated powers that offended the rule of law, was thereby expanded into a war against an ideology, which can be defined ever more broadly by the executive” (p. 83). These measures not only expanded the state of emergency, but denied judicial remedy for numerous violations of legal rights such as drone strikes (even against US citizens), sweeping warrantless surveillance of phone and electronic communications, arbitrary detention, and torture. For example, the regime established at Guantanamo Bay ignored the most basic legal safeguards. Moreover, as Alford points out, this was done “with the goal of obtaining false confessions that would make the case for further military campaigns, thereby prolonging the state of emergency and allowing for additional consolidation of power within the executive branch” (p. 88). In particular, Cheney, Rumsfeld and Paul Wolfowitz had demanded more intense interrogation efforts to prove links between al Qaida and Iraq. OLC memoranda repeatedly invoked both implicit congressional authorization and inherent presidential powers. These claims of executive power, unlimited in scope and duration, are inconsistent with the rule of law.
Chapter 4 reviews the judicial response to the steps reported above: in short, Alford argues there is a consistent evasion of the courts’ constitutional responsibilities. [*128] Despite some chastisement of executive abuses, no effective restraints were imposed on indefinite detention. Therefore, habeas corpus is available in theory but not in practice. “In the end, the court contented itself with merely creating a pressure valve in the form of tightly restricted opportunities for the detainees to prove their innocence, without even requiring release in that event” (p. 118). The DC Circuit Court overturned every judicial grant of habeas, deferring completely to secret intelligence findings, including those obtained by torture, and the Supreme Court never intervened.
Lawsuits by torture victims were likewise dismissed on grounds of official immunity and other avoidance doctrines. Another lawsuit challenging the targeted killing program was dismissed for lack of standing to sue and as presenting a non-justiciable political question. Moreover, when the executive branch has failed to comply with the War Powers Resolution, the courts have consistently failed to enforce it. Courts have also declared themselves powerless to compel publication of legal memoranda that justified targeted killings, as well as warrantless surveillance of antiwar activists, academics, attorneys and journalists. Nor have they challenged the hindering of litigation by retroactive classification of documents sought by plaintiffs. Alford shows that the “Courts have been amenable to arguments about the need for secrecy that make judicial review of violations of non-derogable rights impossible” (p. 149). In sum, because of avoidance and deference, “the federal courts cannot exercise any oversight or restrain the executive’s most serious violations of non-derogable rights.” (p.157). Alford’s assessment of judicial weakness is very close to those of Rudenstine (2016) and Fisher (2017).
Chapter 5 expands on judicial deference to the executive branch. Alford traces a recent strategy of court appointments that systematically favors candidates with past experience in the executive branch with the Senate largely, in Alford’s view, abandoning its earlier resistance to nominees seen as presidential cronies. Alford pays special attention to the backgrounds and judicial conduct of William Rehnquist and Antonin Scalia during this time. The author notes the rejection of Robert Bork was an exception, precisely because his pro executive record and his conservative judicial philosophy were so public. The pattern continued in the Obama Administration with the appointment of Elena Kagan and the nomination of Merrick Garland. Alford also notes that the courts of appeals deferred even more to executive branch prerogatives. For example, there is evidence that “the DC Circuit’s decisions to affirm broad executive powers are part of a concerted attempt to take pressure off the Supreme Court …” (p. 195). Alford argues that the Supreme Court’s 2004 decision (BUSH V. GHEREBI, 542 U.S. 952) to channel most terrorist detainee habeas cases to the DC Circuit establishes a concerted strategy. A “breakdown of the mechanism of judicial selection” has led to a “comprehensive failure of the rule of law in the United States” (p. 198).
Chapter 6 explores the failures of congressional oversight. The Military Commissions Act of 2006 denied procedural protections to detainees and prevented them from relying on the Geneva Conventions. Amendments in 2009 overrode the protections announced by the Supreme Court; both statutes had bipartisan support. The 2005 Detainee Treatment Act granted immunity to torturers, enabled continued use by military commissions of evidence obtained by torture, permitted the executive to reauthorize “enhanced interrogation” simply by amending the Army field Manual, [*129] and directed appeals from findings of enemy combatant status to the strongly pro-executive DC Circuit. In marked contrast to its resistance to President Carter’s peacemaking efforts, Congress quickly authorized the 2003 invasion of Iraq, rejecting proposed limiting amendments, and failed to act against the 2011 attack on Libya or the proposed 2013 attack on Syria. In these cases, efforts at the Committee oversight level were obstructed by false or misleading information. Alford argues that more vigorous resistance is not profitable for members of Congress because it does not enhance their prospects for re-election, but does harm their prospects for support and promotion by leaders of both parties, which exemplifies the power of the military-industrial complex. Alford points out, support for war is highly conducive to success in American politics. “The military-industrial and intelligence complex is able to exert considerable influence over legislators by means of campaign spending that has also expanded exponentially over the past decade” (p. 234). Even after Snowden’s revelations, Congress was far more concerned with the purported illegality of making the executive’s illegal conduct public than with the wrongdoing he revealed. Alford shows, without whistleblowers, legal norms and personal rights can be violated with impunity.
The Conclusion acknowledges that Americans continue to enjoy broad political and social rights, but maintains that a state that is free to violate those at will cannot be considered a functioning rule of law state. “[T]he problem is the creation of constitutional theory that allows the executive to violate non-derogable rights with impunity ….” (p. 247). An Afterword opines that the advent of President Trump, with his even more inflated view of presidential powers, marks a further drastic step toward elective dictatorship.
Alford does an excellent job of documenting post-9/11 challenges to the rule of law. His explanation of these events, however, is far more controversial. First, the rule of law is clearly an ideal, never perfectly realized in the practices of those who make, enforce, and interpret the rules. Arguably, its status in a given state at a given time, can only be a matter of degree, not an either-or proposition. Second, the thinness of Alford’s coverage of pre-9/11 history undermines the persuasiveness of his claim that recent developments are qualitatively new. As he acknowledges, advocates have been able to cite numerous earlier episodes as authority for their claims, even if the status of those episodes as legal “precedent” is highly controversial (see work by Hoffman (1981) and Fisher (2017)). Third, many readers inclined to presume that high officials generally act in good faith, will reject as “conspiracy theory,” Alford’s attributions of base motivation to those who insisted that threats to national security were genuine and accusations/confessions of terrorist action were truthful. Indeed, given the fallibility of human judgment and our facility in persuading ourselves that whatever we want to do is right, it is unclear how much these attributed motives actually strengthen the case on threats to the rule of law. Clearly, presidents have consistently sought to protect the powers of their office by keeping open all of their ever-growing doctrinal options. A sincerely launched war is still a war, and a sincerely seized dictatorship is still a dictatorship. Moreover, while wrongful motives might be pertinent to litigation against current or former high officials, Alford shows that such litigation is anyway unlikely to occur and even less likely to succeed. Conceivably, widespread acceptance of Alford’s charges could change [*130] the climate of public opinion in relevant ways, but Alford is realistically pessimistic about that prospect.
Fourth, Alford, like many others concerned with executive power, tends to conflate the power of the president with that of the “deep state” officials who are formally his subordinates. This obscures the extent, detailed by Glennon (2015), to which those officials shape the presidents’ access to information, formulate their policy alternatives, and can block or obstruct initiatives of which they disapprove. The course of the Trump Administration shows that open conflict is a real possibility. This, however, does not reinforce the rule of law, as Alford understands it, unless legal considerations are publicly debated and supply the basis for policy outcomes. As Charlie Savage (2007, 2015)) has shown, that was seldom or never the case in the G. W. Bush and Obama administrations. Fifth, while violations of international law are significant in principle, Alford fails to demonstrate their concrete legal or political consequences, either at home or abroad. Finally, while the rule of law is said to be a core principle of our Constitution, its actual text and the checks and balances it enumerates can be seen as largely inoperative. Congress’s powers to declare war, suspend habeas corpus, and impeach are, in practical terms, as obsolete as letters of marque and reprisal. Not only is constitutional reform extremely difficult to obtain, but also given our role in the world and our political culture, it is unlikely that it could have much impact on actual power of the executive branch.
REFERENCES:
Glennon, Michael. 2015. NATIONAL SECURITY AND DOUBLE GOVERNMENT. New York: Oxford University Press.
Fisher, Louis. 2017. SUPREME COURT EXPANSION OF PRESIDENTIAL POWER: UNCONSTITUTIONAL LEANINGS. Lawrence: University Press of Kansas.
Hoffman, Daniel N. 1981. GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN CONSTITUTIONAL CONTROLS. Westport: Greenwood Press.
Rudenstine, David. 2016. THE AGE OF DEFERENCE: THE SUPREME COURT, NATIONAL SECURITY, AND THE CONSTITUTIONAL ORDER. New York: Oxford University Press.
Savage, Charlie. 2007. TAKEOEVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY. New York: Little, Brown and Co.
Savage, Charlie. 2015. POWER WARS: INSIDE OBAMA’S POST-9/11 PRESIDENCY. New York: Little, Brown and Co.
CASES:
BUSH V. GHEREBI, 542 U.S. 952 (2004).
PREFACE