Inter Arma Silent Leges II
Balkin asks an important question: For those who support the use of emergency powers in fighting terrorism, should such powers be applied in the case of domestic terrorism? My short answer: It depends.
WRT terrorism by (say), Al Qaeda, I support the use of emergency powers like preventive detention & extrajudicial killings because – like Kontorovich & Wittes – I doubt American criminal law is up to the challenge of neutralizing the threat in question. With Tiller’s killer & his ilk, by contrast, the criminal-justice system appears quite capable of deterring such actions, & neutralizing the perpetrators thereof. So no, I don’t support the use of emergency powers in that instance.
Obviously, this latter conclusion is situationally-dependent. Assume, arguendo, a prolife quasi-insurgency against which the criminal-justice system is as helpless as it was against the Klan in the 1870s. Under those circumstances…yes, I would support (say) the suspension of the writ of habeas corpus, & the use of preventive detentions, extensive domestic surveillance, military commissions, extralegal killings, etc., on American soil insofar as such measures were necessary in order to neutralize that insurgency. And then I’d support immediate repeal of such measures once such neutralization had been accomplished.
And if the threat never went away? In that instance, I would fear for the future of the Republic. A government such as ours depends on certain presumptions regarding the nature of the governed. One such presumption is that the vast majority of the populace is generally unwilling to use extralegal violence in order to overthrow the government or resist its governance. So long as this is true, governance via the rule of law, enforceable via normal operation of the criminal justice system, is possible. But our system of government was never designed to last in an environment of perpetual threat; on the contrary, the existence of this “design limitation” has been known since the Founding.