In the Face of Danger: A Comparative Analysis of the Use of Emergency Powers in the United States and the United Kingdom in the 20th Century


IN THE FACE OF DANGER: A COMPARATIVE
ANALYSIS OF THE USE OF EMERGENCY POWERS

IN THE UNITED STATES AND THE UNITED
KINGDOM IN THE 201 CENTURY

Brian McGiverin*

"History teaches that grave threats to liberty often come in times of
urgency, when constitutional rights seem too extravagant to endure."

- Justice Thurgood Marshall1

"It may help to understand human affairs to be clear that most of the great
triumphs and tragedies of history are caused, not by people being fundamentally
good or fundamentally bad, but by people being fundamentally people.",2

This Note is an examination of emergency powers, a term which refers to
the expanded authority that a government may exercise during an emergency.
It will briefly examine emergency powers in general, and will then move to a
comparative analysis of the use of emergency powers by the United States and
the United Kingdom over the course of the last century.

Section I speculates on the legitimacy of emergency powers and then on
the advisable means through which a government may exercise those powers.
Section II delves into a comparative analysis of emergency powers in the
United States and the United Kingdom - first a legal/political analysis of the
means through which emergency power can be exercised by the respective
government, followed by an historical evaluation of how those powers have
actually been utilized.

I. EMERGENCY POWERS IN THEORY

A. Emergency Power

It is important to begin this exercise by defining what an emergency
power is. In brief, it is the partial or complete suspension of a state's normal
legal system,3 involving the expansion of government power through the

* JD Candidate 2008 (expected), Indiana University School of Law - Indianapolis. B.S.

Criminology 2005, Indiana State University.
1. Skinner v. Ry. Labor Executives Ass'n, 489 U.S. 602, 635 (1989) (Marshall, J.,

dissenting).
2. NEiL GAiMAN & TERRY PRATCHETr, GOOD OMENS 18 (1996).
3. GIORGIO AGAMBEN, STATE OF EXCEPTION 23 (Kevin Attell trans., University of

Chicago Press 2005). Agamben refers to a state's normal legal system as its "juridical order."



IND. INT'L & COMP. L. REV.

curtailment of individual liberties and/or the reassignment of authority between
the branches of government.4 The latter manifests in such a way that the lines
between the political branches begin to blur, generally giving the executive
branch the kind of influence over legislation and adjudication normally
reserved for the other branches.5

A persuasive justification for the use of emergency power by a modem
constitutional democracy can be found in the notion that such a state's political
system is designed with an intricacy predicated on the calm waters of a normal
environment, and that the likelihood of successfully maintaining a government
of such intricacy during the turbulence of a genuine crisis is low.6 This
argument could be interpreted as applying to the state a form of the justification
of necessity, necessitas legem non habet, which generally holds that a person
may legitimately transgress against a rule of the legal system during
circumstances in which acceding to the letter of the law would violate the law's
ultimate purpose of furthering "the common well-being of men."7 This logic of
necessity - the recognition that in order to ensure that the law is enforced justly
it must "promote the achievement of higher values at the expense of lesser
values" and allow a technical breach of legal mandates so that "a more
desirable result than adherence to the law" may occur - harkens at least as far
back as Aristotle.8

This should not suggest that the state itself has an inherent right to exist;
that would directly conflict with the averment that legitimate governing
authority is derived only from the consent of the governed. 9 Rather,
governments exist to secure the rights of the individual.' 0 Indeed, Locke went
so far as to argue that rebellion against the state was justified if it sought to
invade the liberties it was created to protect, dramatically positing that a
government which made such an invasion was composed of rebels who had
placed themselves in a state of war against the people. 11 It stands to reason,
however, that within this normative restriction, a government could still
legitimately expand its power vis-A-vis the individual if such an expansion was

Id.

4. MicHAEL FREEMAN, FREEDOM OR SECuRITY 6 (2003).
5. See AGAMBEN, supra note 3, at 7.
6. See FREEMAN, supra note 4, at 6.
7. AGAMBEN, supra note 3, at 24-25. See BLACK'S LAW DICTIONARY (8th ed. 2004)

("justification, n. 2. A showing, in court, of a sufficient reason why a defendant did what the
prosecution charges the defendant to answer for. - Under the Model Penal Code, the defendant
must believe that the action was necessary to avoid a harm or evil and that the harm or evil to be
avoided was greater than the harm that would have resulted if the crime had been committed.
Model Penal Code § 3.02. -- Also termed justification defense; necessity defense.")

8. Laura J. Schulkind, Note, Applying the Necessity Defense to Civil
Disobedience Cases, 64 N.Y.U. L. REv. 79, 83 (1989).

9. THE DECLARATION OF INDEPENDENCE (U.S. 1776), available at
http://www.archives.gov/national-archives-experience/charters/declaration-transcript.html.

10. Id.
11. JOHN LOCKE, Two TREATISES OF GOVERNMENT § 227 (1689), available at

http://www.constitution.org/jl/2ndtreat.htm.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 235

consented to by the governed.
One permutation of the necessity justification as applied to state action, in

which the state's existence is buttressed by emergency powers so that it may
continue to exist into the future to perform its legitimate functions, is
sometimes called "reason of state."' 2 A small state temporarily curtailing
individual liberty during a war in which it seeks to avoid being swallowed by a
larger neighbor illustrates this form of necessity. A second permutation of
necessity can be found in the phrase salus populi suprema lex, "the welfare of
the people shall be the supreme law,"' 3 suggesting that a state has the moral
imperative to exceed the mandates of written law when doing so is the only
means of acting in accordance with its underlying purpose of pursuing its
citizens' common wellbeing. 14 One example of this second justification would
be commandeering private property, by means of improper procedure, for use
as life-saving shelter during a natural disaster.

Unfortunately, accepting that emergency powers could be exercised
legitimately in theory does little to clear the muddy waters involved in questions
over the legitimacy of their use in practice, because ideas such as "lesser evil"
and "common good" are necessarily subjective determinations.' 5 Moral
legitimacy is unavoidably jeopardized when it can conceivably be claimed with
equal strength by both sides of a dispute.' 6 The subjectivity inherent in the
normative evaluation of the underlying justifications for the use of the
extraordinary powers adopted by states in times of emergency imbues their
availability with a peril. Within the legalism of the modem state, governments
have repeatedly used emergency powers as a means for "the physical
elimination not only of political adversaries but of entire categories of citizens
who for some reason [could not] be integrated into the political system."'17

The legitimacy of emergency powers is further imperiled because the
exigencies of the circumstances may well place a government in the position of
acting as its own judge. The words of Abraham Lincoln effectively illustrate
this point:

Every man thinks he has a right to live and every government
thinks it has a right to live. Every man when driven to the
wall by a murderous assailant will override all laws to protect
himself, and this is called the great right of self-defense. So
every government when driven to the wall by a rebellion will
trample down a constitution before it will allow itself to be

12. LAURA K. DONOHUE, COUNTER-TERRORIST LAW AND EMERGENCY POWERS IN THE
UNITED KINGDOM 1922-2000 331 (2001).

13. DAVID BONNER, EMERGENCY POWERS IN PEACETIME 55 (J. P. W. B. McAuslan ed.,
1985).

14. LOCKE, supra note 11, § 160.
15. AGAMBEN, supra note 3, at 30.
16. DONOHUE, supra note 12, at 338.
17. AGAMBEN, supra note 3, at 2.



IND. INT'L & COMP. L. REv.

destroyed. This may not be constitutional law but it is a fact.' 8

Such a situation calls into question the legitimacy of the use of emergency
powers, as being the judge of one's own case is a violation of the most basic
principles of due process. 19 As was stated by Madison, "[n]o man is allowed to
be a judge in his own cause, because his interest would certainly bias his
judgment, and, not improbably, corrupt his integrity., 20

B. Separation of Powers

This analysis of emergency powers leaves us with something of a
quandary. We find ourselves in a position in which statesmen will act on the
basis of subjective notions of justice, which may or may not be shared by the
citizenry through which governing authority derives legitimacy. Though clearly
a tool of great power with the potential to be used for benevolent purposes,
these powers cut both ways, in that they can and have been used for stunning
malevolence. Do emergency powers amount to a sword with no handle, a tool
which will inevitably expose us to the perils of an unbridled and capricious
state? Perhaps not.

From the records available, it is evident that concern about the potential
for a state to accumulate absolute power was planted firmly in the minds of the
Founding Fathers. In the Federalist Papers, Madison pointed out with profound
clarity that "[i]n framing a government which is to be administered by men over
men, the great difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control itself.",2' The
solution to this dilemma presented by the "Father of the Constitution" was a
government of separated powers, in which each branch would serve as a check

22upon the others. Though all actors in government might be filled with
ambition, dividing those people into groups with conflicting interests would
help serve as an incentive for one branch to limit the institutional power of the
other branches.23 "Ambition must be made to counteract ambition. 24

Arguably, the availability of emergency powers undermines the
possibility of a government of divided power, because the branch capable of
triggering those powers can easily circumvent any bulwarks to its authority. 25

In other words, a President capable of ignoring Congress and the Judiciary may

18. BONNER, supra note 13, at 2.
19. JOHN V. ORTH, DuE PROCESS OF LAW 15-32 (2003).
20. THE FEDERALIST No. 10 (James Madison), available at

http://thomas.loc.gov/home/histdox/fed_10.html [hereinafter FEDERALIST No. 10].
21. THE FEDERALIST No. 51 (James Madison), available at

http://thomas.loc.gov/home/histdox/fed_51 .html [hereinafter FEDERALIST No. 51 ].
22. Id.
23. Id.
24. Id.
25. FREEMAN, supra note 4, at 42.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 237

as well be called king. This is not necessarily so, however, because although

the activation of emergency powers moves a state to a juridical order different
than that used during normal circumstances, it is possible for the principles of

self-restrained government to continue serving as a bridle for state power.26
What is required is a division between the authority to trigger emergency power

and the authority to exercise emergency power.27 Justice Souter opined:

In a government of separated powers, deciding finally on what
is a reasonable degree of guaranteed liberty whether in peace

or war (or some condition in between) is not well entrusted to
the Executive Branch of Government, whose particular
responsibility is to maintain security. For reasons of
inescapable human nature, the branch of the Government

asked to counter a serious threat is not the branch on which to
rest the Nation's entire reliance in striking the balance

between the will to win and the cost in liberty on the way to
victory... A reasonable balance is more likely to be reached on

the judgment of a different branch, just as Madison said in
remarking that "the constant aim is to divide and arrange the

several offices in such a manner as that each may be a check
on the other-that the private interest of every individual may
be a sentinel over the public rights."28

If designed thusly, not only does the initial activation of emergency power
require the consent of competing branches of government, it also provides both

the opportunity to continuously monitor the use of those powers and the key to
their revocation.2 9

C. Influence of the Citizenry

Despite lengthy reflections on mitigating the chances of tyranny by

dividing the government into separate branches, it seems that the Founding
Fathers did not consider that sort of internal restraint to be the first bulwark
against the abuse of power.30 Rather, as Madison wrote, "[a] dependence on

the people is, no doubt, the primary control on the government."3 Injustifying

the creation of a new federal government with more power than that which was

afforded under the Articles of Confederation, Madison argued that a large

republic would be less likely to devolve into an authoritarian state than a small

republic because, by increasing the size of a republic, one also increases the

26. See id.
27. Id.
28. Hamdi v. Rumsfeld, 542 U.S. 507, 545 (2004) (Souter, J., concurring).
29. See FREEMAN, supra note 4, at 43.
30. See THE FEDERALIST No. 51, supra note 21.
31. Id.



IND. INT'L & COMP. L. REV.

number of citizens, and in doing so "you take in a greater variety of parties and
interests; you make it less probable that a majority of the whole will have a
common motive to invade the rights of other citizens. 32 Thus, a diverse array
of distinct interests ameliorates the chances of finding a political faction which
includes a majority of the state's citizens, which might be willing to invade the
rights of the remainder, "sacrific[ing] to its ruling passion or interest both the
public good and the rights of other citizens." 33

Despite the apparent strength of Madison's reasoning, the United States
has experienced many periods in which the political demands of the day have
led to the new and immediate invasion of a minority group's rights. Some
commentators have suggested that events such as the Sedition Act of 1798, the
prosecution of northern antiwar advocates during the Civil War, the Espionage
and Sedition Acts of World War I, Japanese internment during World War 11,
and the Smith and Internal Security Acts of the McCarthy era are representative
of "a form of constitutional pathology, during which the nation's foundational
commitment to civil liberties is either seriously undermined or all but
abandoned.,34  This phenomenon can be explained within Madison's
framework by utilizing contemporary observations of social mechanics. The
relationship between citizen and government in general is much more complex
than Madison's description. While it seems to be true that government policy is
dependant upon public opinion, 35 public opinion itself tends to be highly
malleable; social mechanisms sometimes allow the "cognitive errors, emotive
responses, and moral stratagems" of a few people to be amplified and
transferred to a much larger group.36 Public opinion may be influenced by a
"social cascade" in which "many people end up thinking something," either
factual or normative, "because of the beliefs or actions of a few early movers."37

This can be observed in the reaction caused by the opinions of so-called elites
(e.g. "politicians, journalists, policy experts, certain activists" and others who
are the most vocal about contemporary political issues), which can influence the
public to the point of inducing "citizens to hold opinions that they would not
hold if aware of the best available information and analysis., 38

Alternatively, popular opinion can be affected through group polarization,
in which "[g]roup cohesiveness, self-censorship, insulation, and homogeneous

32. THE FEDERALIST No. 10, supra note 20.
33. Id.
34. MARTIN H. REDISH, THE LOGIC OF PERSECUTION 46-49 (2005).
35. Nancy C. Wilkie, Public Opinion Regarding Cultural Property Policy, 19

CARDOZO ARTS & ENT. L.J. 97, 99-100 (2001).
36. Jonathan H. Marks, 9/11 + 3/11 + 7/7 = ? What Counts in Counterterrorism,

37 COLUM. HUM. RTS. L. REv. 559, 574 (2006).
37. Id. at 574-76.
38. Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and

the True Nature of Constitutional Culture, 93 GEO. L.J. 897, 928-30 (2005). See also
Michael K. Gusmano, Policy Feedback and Public Opinion: The Role of Employer
Responsibility in Social Policy, 27 J. HEALTH POL. POL'Y & L. 731, 735 (2002).

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ideology" cause a person to adopt the opinion of a group with whom he
identifies, through a process of "selective bias in the processing of information,
failure to survey and assess alternatives adequately, or reluctance to examine
the risks of a preferred choice." 39 These patterns of human interaction might
explain why there tends to be a temporary surge of public opinion in support of
government policy during times of emergency, sometimes called the "rally-
round-the flag" effect,40 which may in turn create a condition appropriately
described in Madisonian terms as a temporary majority faction - i.e. the
alignment of otherwise politically heterogeneous groups temporarily united by
fear and a concern for national security. Finally, in the long term, simple inertia
may influence public opinion, in that individuals become accustomed to and
accepting of a government policy after being subjected to it over time.4

This ability of society to surmount procedural guards against tyranny is
especially alarming when one considers that in a time of emergency the
majority may choose to demonize a specific minority group, categorizing it as
an antagonist within a normative framework which serves the natural human
desire "to impose order on events that are experienced as irrational and
frightening. ' '42 As Carl Jung averred,

The real existence of an enemy upon whom one can foist off
everything evil is an enormous relief to one's conscience. You
can then at least say, without hesitation, who the devil is; you
are quite certain that the cause of your misfortune is outside,
and not in your own attitude.43

Many theories have been put forward in an attempt to explain this
phenomenon. One, a theory of delinquency developed by Sykes and Matza,
allows for the selective neutralization of particular norms that are characteristic
of the dominant social order. 44 "The perpetrator claims an exceptional situation
in which breaking the norm is justifiable without questioning the validity of the
norm as such. Neutralization thus makes it possible for the violation to appear
acceptable, if not legitimate. ' '45 A second theory posits that individuals are
capable of using moral compartmentalization to establish an alternative moral

39. Marks, supra note 36, at 576-77.
40. Jide Nzelibe, A Positive Theory of the War-Powers Constitution, 91 IOWA L. REV.

993, 1005 n. 26 (2006).
41. Gusmano, supra note 38, at 734-35.
42. Collin O'Connor Udell, Parading the Saurian Tail, 42 Ariz. L. Rev. 731, 749-50

(2000).
43. Id. at 752.

44. Frank Neubacher, How Can it Happen That Horrendous State Crimes Are
Perpetrated?, 4 J. INT'L CRIM. JUST. 787, 792-794 (2006). The five individual techniques are
denial of responsibility, denial of injury, denial of the victim, condemnation of the condemners,
and appeal to higher loyalties. Id.

45. Id. at 792.



IND. INT'L & CoMP. L. REV.

framework to apply to an exceptional circumstance while avoiding feelings of
moral dissonance, even though it conflicts with the old moral framework that
the person otherwise continues to hold. 46 A third theory holds that an
individual may dehumanize a person, relegating him from what he regards as
the "in-group" to the "out-group", effectively moving him outside of the
community to whom he feels morally bound.47 In any of these situations, the
protection normally provided by political pluralism would arguably fall away,
leaving the rule of law as the only protection for the rights of the targeted
minority.

II. COMPARATIVE ANALYSIS

A. The United States

1. The American System of Emergency Power

As previously discussed, evocating emergency powers may involve either
a transfer of authority between the branches of government (generally to the
effect of strengthening the executive branch) or the expansion of government
authority at the expense of individual liberties.4a While the United States has
had occasion to use the latter method, it has in large part managed to abstain
from altering the formal balance of power between the three branches as a
means of dealing with emergencies, especially when compared to the United
Kingdom.49

Aside from the limited powers exclusively afforded to the executive
branch by Article II of the Constitution, the President's legitimate domain of
action is defined by Congressional mandate50 and has traditionally been
evaluated within that context. 51 As such, the courts have been protective of the

46. Marks, supra note 36, at 571-72, 579-82.
47. Neubacher, supra note 44, at 792.
48. Supra section I(A).
49. Infra section II(B).
50. Youngstown Sheet& Tube Co. v. Sawyer, 343 U.S. 579,637-38 (1952) (Jackson,

J., concurring). The formula for Presidential power described in Justice Jackson's concurrence
has been the most influential articulation from Youngstown. Jason Collins Weida, Note, A
Republic of Emergencies, 36 CoNN. L. REv. 1397, 1430-1433 (2004). Or, at least, within as
much of a mandate as one can hope for within the context of the ambiguity characteristic of the
legislature. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119
HARV. L. REv. 2311, 2353-54 (2006).

51. Compare Ex parte Mitsuye Endo, 323 U.S. 283 (1944) (finding that although the
power to detain citizens of Japanese descent was a legitimate activity of the executive because it
was impliedly authorized by Congress as a necessary step to achieving an explicitly authorized
goal - the removal of said persons from designated military areas -, the detention of a
concededly loyal citizen of Japanese descent was not legitimate, as Congress's purpose in
authorizing exclusion was to prevent the occurrence espionage and sabotage by those who were

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right to due process as a means of ascertaining whether the executive is acting
within the realm its legitimate authority,52 finding that individuals have the right
to a minimum degree of due process regardless of the difficulty that it presents

the government.53 The courts have simultaneously ruled, however, that due
process can be satisfied through the use of military tribunals 54 - non-Article 111
courts which may be convened under the authority of the jointly-held war
powers of the President and Congress to try individuals for violations of the
laws of war. These tribunals can only exercise jurisdiction over an American
citizen if he is in military service, if he is tried at a time when Article I courts

56
are not functioning, or if he is accused of being an unlawful combatant.

Congress, in defining the powers of the executive in times of emergency,
faces few obstacles. Though the Supreme Court has made grandiose claims

during times of peace that no emergency could justify Congressional
transgression upon certain inalienable rights,57 an observation of judicial history
reveals that in times of emergency the Supreme Court will acquiesce to
restrictions of individual rights that it would not allow during times of

normalcy.58 Rather than enforcing civil rights against the government, the
Court has preferred to endorse the liberty/security balances sought by
Congress. 59 "Thus, although there are no specific emergency powers as such,

the interpretation of the Supreme Court of the United States has been flexible
,,61

enough to permit required action to be taken to meet emergencies.Speculation over the Court's motivation for doing so include the presumption

potentially disloyal) and Sarah A. Whalin, Note, National Security Versus Due Process:

Korematsu Raises its Ugly Head Sixty Years Later in Hamdi and Padilla, 22 GA. ST. U. L. REv.
711, 716-17 (2006) with Hamdi v. Rumsfeld, 542 U.S. 507, 518-19 (2004) (finding that
detention, when used "to prevent a combatant's return to the battlefield" is "a fundamental
incident of waging war," and was thus impliedly authorized by Congress in the "necessary and
appropriate force" language of Congress's Authorization for Use of Military Force) and Whalin,
supra note 53, at 722-23.

52. See Hamdi, 542 U.S. at 528-36 (finding the government's obligation to provide an
individual with due process wanes in the face of national security concerns, but that the
"essential constitutional promises" of receiving "notice of the factual basis for his classification,
and a fair opportunity to rebut the Government's factual assertions before a neutral
decisionmaker" cannot be abridged). See also Whalin, supra note 5 1, at 724-26.

53. Hamdi, 542 U.S. at 538.
54. Id. ("There remains the possibility that the standards we have articulated could be met

by an appropriately authorized and properly constituted military tribunal").
55. Benjamin V. Madison, III, Trial by Jury or by Military TribunalforAccused Terrorist

Detainees Facing the Death Penalty? An Examination of Principles that Transcend the U.S.
Constitution, 17 U. FLA. J.L. & PUB. POL'Y 347, 366-90 (2006).

56. Id.
57. See John S. Richbourg, Liberty and Security: The Yin and Yang of

Immigration Law, 33 U. MEM. L. REv. 475,488-90 (2003). See also Avigael N. Cymrot,

Reading, Writing, and Radicalism: the Limits on Government Control Over Private

Schooling in an Age of Terrorism, 37 ST. MARY'S L.J. 607,635-36 (2006).
58. W.S. Tarnopolsky, Emergency Powers and Civil Liberties, CANADIAN PUBUC

ADMINISTRATION, Vol. 15 Issue 2, 1972, at 201.
59. Levinson, supra note 50, at 2350.
60. Tarnopolsky, supra note 58, at 202-03.



IND. INT'L & COMP. L. REv.

that the Court acknowledges that balancing liberty against security requires an
ability to gather information for which the courts are comparatively ill
equipped; 61 that the Court is concerned that decisions made contrary to the
wishes of Congress and the President would not be enforced; 62 and the

possibility that the Justices, as individuals, shared the belief-structures which
galvanized the rest of society during times of perceived emergency.6 3

The greatest opposition that the Court has shown to the other branches of
government has probably been in the preservation of its own role in the
tripartite system. The judiciary as a whole faces the real possibility of being
nudged into a lesser position depending on the interpretation given to the
Constitution's Suspension Clause, 64 which governs the suspension of the writ
of habeas corpus and thus judicial review of detention by the government; and
the Exceptions Clause,65 which governs Congress's control of the Supreme
Court's appellate jurisdiction. In the past, the Court has preferred to interpret
both clauses on statutory rather than Constitutional grounds.66 Consequently,
the precise meaning of each clause is still the source of intense debate among
jurists. Both sides of the debate over the Suspension Clause appear to agree

61. David Cole, Judging the Next Emergency: Judicial Review and Individual Rights in

Times of Crisis, 101 MICH. L. REV. 2565, 2570 (2003).
62. Id. at 2570-71.
63. Id. at 2570. See also REDISH, supra note 35, at 57.
64. U.S. CONST. art. I, § 9, cl. 2.
65. U.S. CONST. art. III, § 2, cl. 2
66. E.g. Felker v. Turpin, 518 U.S. 651, 660-62 (1996).

No provision of Title I mentions our authority to entertain original habeas
petitions; in contrast, § 103 amends the Federal Rules of Appellate Procedure to
bar consideration of original habeas petitions in the courts of appeals. Although
§ 2244(b)(3)(E) precludes us from reviewing, by appeal or petition for certiorari,
a judgment on an application for leave to file a second habeas petition in district
court, it makes no mention of our authority to hear habeas petitions filed as
original matters in this Court. As we declined to find a repeal of § 14 of the
Judiciary Act of 1789 as applied to this Court by implication then, we decline to
find a similar repeal of § 2241 of Title 28-its descendant, n. 1, supra-by
implication now. This conclusion obviates one of the constitutional challenges

raised... The Act does remove our authority to entertain an appeal or a petition
for a writ of certiorari to review a decision of a court of appeals exercising its
'gatekeeping" function over a second petition. But since it does not repeal our

authority to entertain a petition for habeas corpus, there can be no plausible
argument that the Act has deprived this Court of appellate jurisdiction in
violation of Article III, § 2.

Id., See also I.N.S. v. St. Cyr, 533 U.S. 289, 301 n. 13 (2001) (finding "[t]he fact that

this Court would be required to answer the difficult question of what the Suspension

Clause protects is in and of itself a reason to avoid answering the constitutional
questions that would be raised by concluding that review was barred entirely");
Hamdan v. Rumsfeld, 464 F. Supp.2d 9, 15 (D.C. 2006) ("In two relatively recent

cases involving the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(I[RIRA), indeed, the Court has carefully avoided saying exactly what the Suspension

Clause protects").

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that it requires some degree of judicial review over an individual's detention. 67

The real bone of contention is whether it protects the judiciary's ability to
utilize the writ as a cause of action, 68 or if the clause would allow for the
abridgement of the writ if alternative avenues forjudicial review of detainment
were instituted. 69 A similar debate rages over the Exceptions Clause. At one
extreme is the belief that Congress's authority to limit the Court's appellate
jurisdiction is absolute; at the other extreme is the notion that the nation's
whole judicial power is vested somewhere in the federal judiciary.
Intermediate ideas generally involve the notion that the whole power of the
federal judiciary must be vested somewhere, though not necessarily with the
Supreme Court.71

The meaning of the Suspension Clause, at least, may soon be made
clearer as a result of the recently passed Military Commissions Act of 2006
("MCA"). 72 Section 7 of the MCA inserted new language into 28 U.S.C.A. §
2241, the statute defining the federal courts' ability to issue of a writ of habeas
corpus, providing the following:

No court, justice, or judge shall have jurisdiction to hear or
consider an application for a writ of habeas corpus filed by or
on behalf of an alien detained by the United States who has
been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such
determination. 3

This language has the potential to abridge the Suspension Clause in only a
particular set of circumstances. The first is through petitions by detainees held
at Guantanamo Bay, Cuba. The Court ruled quite some time ago that non-
citizens receive the protections of the individual rights embodied in
Constitution only when they are within the "territory over which the United
States is sovereign,' 74 though there has been some indication since then that the
Court might ultimately move away from a strictly territorial approach to the
Constitution,75 or that it might question whether the writ of habeas corpus

67. Janet Cooper Alexander, Jurisdiction-Stripping in the War on Terrorism, 2 STAN. J.
Civ. RTS. & Civ. LIBERTIES 259, 285 (2006).

68. Id. at 277. See also Gerald L. Neuman, Habeas Corpus, Executive Detention, and the
Removal of Aliens, 98 COLUM. L. REV. 961, 969 (1998).

69. Alexander, supra note 67, at 285. See also Richard H. Fallon, Jr., Response, Applying
the Suspension Clause to Immigration Cases, 98 COLUM. L. REV. 1068, 1082-84 (1998).

70. Richard E. Levy & Sidney A. Shapiro, Government Benefits and the Rule of Law:
Toward a Standards-Based Theory of Judicial Review, 58 ADMIN. L. REV. 499,529-30 (2006).

71. Id. at 530-32.
72. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006).
73. Power to grant writ, 28 U.S.C.A. § 2241(e)(1).
74. Johnson v. Eisentrager, 339 U.S. 763, 777-78 (1950). See also Kal Raustiala,

The Geography of Justice, 73 FORDHAM L. REV. 2501, 2532 (2005).
75. See Reid v. Covert, 354 U.S. 1 (1957) (ruling Americans abroad would be protected



IND. INT'L & COMP. L. REv.

should even be considered an individual right, or rather if the writ is a
restriction on Congress's ability to legislate, which would be applicable in all

76circumstances. At this moment, the United States government contends that
sovereignty over Guantanamo Bay remains with Cuba77 as was stated in the
lease agreement made when control over the territory was acquired,78 and so far
the courts have been receptive to that claim.79 The second instance in which
the MCA has the potential to abridge the Suspension Clause is in regard to
aliens within the territorial United States who may be detained.80 In instances
of detainment followed by prosecution, the Suspension Clause may be satisfied
if the Supreme Court sides with the interpretation of the clause which merely
requires judicial review; 81 however, the procedures outlined in the MCA would
not, by any stretch of the imagination, satisfy the Suspension Clause for
noncitizens who are detained within this country without being brought to
trial.82

2. World War I and the Red Scare

At the time of America's entry into the World War I, and the time
immediately preceding it, there was little popular support for intervening in the
conflict; in fact several politicians were elected into office on antiwar campaign
platforms. 83 This environment of apathy and dissent among the populace led
the Wilson administration to attempt the cultivation of war-time hysteria,84 and

by rights granted under the Constitution for the first time). See also Elizabeth A. Wilson, The
War on Terrorism and "The Water's Edge ": Sovereignty, "Territorial Jurisdiction, " and the
Reach of the US Constitution in the Guantanamo Detainee Litigation, 8 U. PA. J. CONST. L. 165,
192-93 (2006).

The last concentric circle is a dotted one, because it represents a doctrinal
development that was not formally adopted by the Supreme Court. After Reid v.
Covert, the Supreme Court decided several other cases involving citizens under
military jurisdiction, but the Court did not turn its attention to aliens abroad again
until 1990 in Verdugo-Urquidez. In the intervening years, lower courts took
guidance from Reid and looked to the concept of control, rather than sovereignty,
as the trigger of constitutional rights. In this phase of expansion in the
extraterritorial application of the Constitution, the Constitution was extended to
territories over which the United States was not technically sovereign, but
exercised significant control and authority.

Id. at 193.
76. Boumediene v. Bush, 476 F.3d 981, 994-95 (D.C. Cir. 2007) (Rogers, dissenting),

cert. granted, 127 S.Ct. 3078 (Jun 29, 2007). The Supreme Court will weigh in on this
important case sometime in its 2007-2008 term.

77. Raustiala, supra note 74, at 2501.
78. Rasul v. Bush, 542 U.S. 466, 471 (2004).
79. Boumediene, 476 F.3d at 991-92.
80. Military Commissions Act, Pub. L. No. 109-366, 120 Stat. 2600 § 950g (2006).
81. Alexander, supra note 67, at 286-87.
82. Id. at 287-90.
83. Howard Zinn, Forward to STEPHEN M. KOHN, AMERICAN PoLIcCAL PRISONERS xii

(1994).
84. REDISH, supra note 34, at 50.

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2008] COMPARATIVE ANALYsIs OF THE USE OF EMERGENCY POWERS 245

the means through which it did so was the creation of a propaganda agency
known as the Committee on Public Information (CPI). 85 This agency, created
less than a week after the declaration of war,86 "flooded the public with
pamphlets, press releases, newsreels, and even government-authored political
cartoons," by some accounts leading newspapers to publish "at least 20,000
columns of CPI material each week., 8 7 These efforts to create public support
for the war were ultimately very successful.88

Two months after America entered the war, Congress passed the
Espionage Act of 1917,89 which criminalized espionage and sought to punish
those who willfully caused, attempted to cause, or conspired to cause
interference with the draft, or "insubordination, disloyalty, mutiny, or refusal of
duty" in the armed forces, with a fine of $10,000 or up to twenty years in
prison.90 The following year, the Espionage Act was amended by the Sedition
Act of 1918, 91 making the list of acts which incurred the above punishment
even more extensive, significantly limiting freedom of speech as it related to the
war. A portion of the expanded list of proscribed activities read:

whoever, when the United States is at war, shall willfully
utter, print, write, or publish any disloyal, profane, scurrilous,
or abusive language about the form of government of the
United States, or the Constitution of the United States, or the
military or naval forces of the United States, or the flag of the
United States, or the uniform of the Army or Navy of the
United States, or any language intended to bring the form of
government of the United States, or the Constitution of the
United States, or the military or naval forces of the United

85. ROBERT JUSTIN GOLDSTEIN, POLITCAL REPRESSION IN MODERN AMERICA 105 (1978).

See also Ann Bartow, Trademarks of Privilege: Naming Rights and the Physical Public
Domain, 40 U.C. DAVIS L. REV. 919, 957 n. 117 (2007).

Wilson hired a publicist, George Creel, to head the "Committee on Public
Information" (CPI)--a propaganda ministry with the sole purpose of "selling the
war." CPI produced films, pamphlets, curriculum guides--all designed to "paint
Germany in a bad light." Wilson's propaganda ministry encouraged businesses to
spy on their employees, parents to spy on their children, and neighbors to spy on
neighbors. Most importantly, the CPI urged Americans to report "disloyal" pro-
German sentiments. Creel himself stated that he demanded, "100%
Americanism."

Id.
86. The United States declared war on Germany on April 6, 1917. The CPI was created

by executive order on April 13. J. Gregory Sidak, The Price of Experience: The Constitution
After September 11, 2001, 19 CONST. COMMENT. 37, 54 n. 58 (2002).

87. Jodie Morse, Note, Managing the News: The History and Constitutionality of the
Government Spin Machine, 81 N.Y.U. L. REV. 843, 850 (2006).

88. GOLDsTEIN, supra note 85, at 105.
89. Espionage Act of 1917, ch. 30, § 1, 40 Stat. 217 (1917).
90. Espionage Act of 1917, 40 Stat. 217 §§ 3-4. See also KOHN, supra note 83, at 8.
91. Sedition Act of 1918, ch. 75, § 1, 40 Stat. 553 (1918) (repealed 1921).



IND. INT'L & COMP. L. REV.

States, or the flag of the United States, or the uniform of the
Army or Navy of the United States into contempt, scorn,
contumely, or disrepute... and whoever shall by word or act
support or favor the cause of any country with which the
United States is at war or by word or act oppose the cause of
the United States therein, shall be punished by a fine of not
more than $10,000 or imprisonment for not more than twenty
years, or both .... 92

In the case of each law, both Representatives and Senators unabashedly
admitted that their motivation for supporting the legislation was derived from
the desire to suppress domestic dissent ranging from anti-war passivism, to
union activism, to racial tensions.93

The combination of the feverish public opinion fostered by the CPI and
the laws passed by Congress to limit the ability of private individuals to express
opposition to the war defined a period arguably characterized by the "the virtual
complete collapse of support for concepts of civil liberties among all segments
of the population except for those groups that came under direct attack.' ' 94 It
was within this vacuum that the government presided over the dismembering of
two groups which had formed a core of political dissent in the nation for
decades: the International Workers of the World (IWW) and the Socialist Party
of America (SPA).

The IWW was one of the most successful American unions in the late
nineteenth and early twentieth centuries, a time when unionization was not
legal and strikes were sometimes ended violently by private strike breakers
and/or the government. 95 By 1917, the group had expanded to about 100,000
members.96 Conversely, the SPA had achieved a great deal of success in the
political realm, with Socialists being elected to Congress and over a thousand
municipal offices across the country,97 due in part to their antiwar election
platforms.98 Total membership was also around 100,000, and Socialist
literature was routinely sent to roughly one million people.99 The Espionage
and Sedition Acts were "used to systematically destroy" both organizations.100

Many of the top leaders of the SPA were arrested immediately before the
off-year elections in November 1917, disrupting the party's political activity
and sometimes culminating in the jailing of candidates. 01 After the election,

92. Sedition Act of 1918 § 3 (emphasis added).
93. KOHN, supra note 83, at 8-9.
94. REDISH, supra note 34, at 50.
95. GoLDsTEIN, supra note 85, at 90-94.
96. Id. at 98.
97. Howard Zinn, Forward to KOHN, supra note 83, at xii.
98. Id.
99. Id.

100. Id. at 14.
101. GOLDSTEIN, supra note 85, at 119.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 247

"sedition indictments were returned against virtually every major SPA leader,"

some of whom received twenty year sentences. 1
0
2 Eugene Debs, who had been

the SPA's presidential candidate five-times, was also arrested and convicted.10 3

Further, by the end of the war, virtually all of the leaders of the 1WW had been
arrested, as well.' °4 Put into mass trials, they were prosecuted under the theory
that the IWW had distributed statements and made speeches against the war
and/or the United States. 105 Hundreds were convicted, mostly on charges of
conspiracy, with their 1WW membership being the only evidence against
them.'°6 Ultimately, about 2100 people were indicted under the acts, and about
1000 convicted, 10 7 none of whom were convicted for the sections of the act
genuinely related to espionage.108

Three convictions based upon this abridgment of freedom of speech
reached the Supreme Court. 109 In the first, Schenck v. United States, 110 Justice
Holmes articulated the "clear and present danger" test for the first time, which
on its face appeared to be a substantially more protective doctrine than that
previously used by the Court.'1 ' However, while he argued in favor of this new
doctrine in dissenting opinions in subsequent years,' 12 in the unanimous
opinion that he authored in Schenck, Holmes upheld a conviction for printing
anti-war circulars,' 13 and in doing so he appears to have failed to apply his
newly articulated test in place than the older "bad tendency" test, given that he
declined to offer any evidence that the leaflets amounted to a "clear and present
danger." ' 1 4 Rather, in explaining the Court's balancing of the national interest
against the First Amendment, Holmes stated:

[w]e admit that in many places and in ordinary times the
defendants in saying all that was said in the circular would
have been within their constitutional rights. But the character
of every act depends upon the circumstances in which it is
done... When a nation is at war many things that might be
said in time of peace are such a hindrance to its effort that
their utterance will not be endured so long as men fight and
that no Court could regard them as protected by any

102. Id.
103. Id.
104. Id. at 118.
105. KOHN, supra note 83, at 14.
106. GOLDSTEIN, supra note 85, at 117-118.

107. Id. at 113.
108. Id.
109. Robert S. Tanenbaum, Preaching Terror, 55 AM. U. L. REv. 785, 793 (2006).
110. Schenck v. United States, 249 U.S. 47, 52 (1919).
111. David G. Barnum, The Clear and Present Danger Test in Anglo-America and

European Law, 7 SAN DIEGO INT'L L.J. 263, 272 (2006).
112. Id. at 275-76.
113. Tanenbaum, supra note 109, at 794.
114. Barnum, supra note 111, at 272.



IND. INT'L & COMP. L. REV.

constitutional right." 5

Holmes failed to even mention the clear and present danger test 116 in the
opinions he authored for Frohwerk v. United States'1 7 and Debs v. United
States118 just one week later.

The period in the United States immediately after the First World War
has come to be known as the Red Scare. 19 Several intervening events had
occurred between America's entry into the war and the end of 1919 which
served to inflame public opinion. In particular, in November of 1917, the
Bolsheviks seized control of Russia and, following the armistice with Germany
in 1918, several communist uprisings occurred in the territory of the defeated
Central Powers. At roughly the same time that these foreign events were
seeding domestic fears, many communist parties were forming in the United
States. 121 The fact that these new parties were heavily composed of aliens, who
Americans had traditionally associated with radicalism, helped to create a
demand among the citizenry to deport aliens that were involved in radical
political activities. 22 Subsequently, on January 2, 1920, federal agents, under
the direction of Attorney-General Alexander Palmer, swept down on 30 cities,
arresting between five and ten thousand people, two to seven thousand of
whom were arrested without warrants. 123 This raid, along with one the previous
December, came to be known as the Palmer Raids. 24 At the time, Congress,
the press, and the public clamored for mass deportation of those arrested, 125 and
the courts decided that deportation hearings were an administrative matter not
subject to the courts' review. 26 The fate of those detained appeared to be set.

Ultimately, the executive branch's hand was temporarily stayed by the
administrators of the Department of Labor, which at the time was responsible
for approving deportations, who balked at deporting the detainees en mass.127

Before this obstruction could be circumvented, the public hysteria began to
subside and many respected Americans began to speak out against the raids and
the invasions of civil liberties that had been committed. 128 In May, a group of
prominent lawyers released an extensive report condemning the illegality of the

115. Schenck, 249 U.S. at 52.
116. Barnum, supra note 11, at 273. Tanenbaum, supra note 109, at 794-95.
117. Frohwerk v. United States, 249 U.S. 204 (1919).
118. Debs v. United States, 249 U.S. 211 (1919).
119. REDISH, supra note 34, at 50.
120. William M. Wiecek, The Legal Foundations of Domestic Anticommnunism, 2001 SUP.

CT. REV. 375, 387 (2001).
121. GOLDSTEIN, supra note 85, at 153-54.
122. Id.
123. Id. at 156.
124. REDISH, supra note 34, at 50.
125. EDWINP. HOYT, THE PALMER RAIDS 1919-1920 107 (1969).
126. GOLDSTEIN, supra note 85, at 154.
127. Id. at 160.
128. REDISH, supra note 34, at 51.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 249

raids,129 and similar opposition arose from the press, religious figures, and
lower branches of the judiciary.' 30 Soon thereafter, the Department of Labor
began to make individual rulings over deportation cases and found that no basis
for deportation existed in the majority of cases. 131 In the end, only 556 of the
people originally detained (about 5-10 percent) were deported. 132 When, in
response, the President demanded that Congress begin impeachment
proceedings against the Assistant Secretary of Labor who was responsible for
these unanticipated events, the House Rules Committee concluded that it was in
fact the President and Palmer, rather than the Department of Labor, who
constituted the menace to American liberty. 133 Within just a few months of the
raids, calmer minds had prevailed and public policy had altered course.

This period of abnormal invasion of individual liberties went into
remission with the end of the Red Scare. 134 The Espionage Act ceased to be in
effect when the war with Germany was formally concluded in mid-1921, and
the Sedition Act had been repealed shortly before. 135 Two years later in 1923,
the U.S. Pardon Attorney, in a communication with the Attorney General,
recommended that the people who remained imprisoned based on convictions
made under the Espionage and Sedition Acts be pardoned, opining that the
evidence did not support the charges that had been against them.' 36 Soon
thereafter, the sentences of the remaining prisoners were commuted. 37

3. Japanese Internment

The typical examination of the Japanese Internment during World War II
always seems to begin with the bombing of Pearl Harbor on December 7, 1941
- tagged with the well known phrase "a date which will live in infamy"'138 - as
if this event was the sole causative factor in the United States' treatment of
Japanese immigrants and their descendants during the war. The real story
begins much earlier.

The first Japanese immigrants came to Hawaii and the United States in
the late nineteenth139 and early twentieth centuries as agricultural laborers, 140

129. HoYT, supra note 125, at 115-17.
130. GOLDSTEIN, supra note 85, at 159-60.
131. Id. at 160.
132. Id.
133. Wiecek, supra note 120, at 391.
134. GOLDSTEIN, supra note 85, at 139. REDISH, supra note 34, at 51.
135. GOLDSTEIN, supra note 85, at 172.
136. KoHN, supra note 83, at 20.
137. Id.
138. Franklin D. Roosevelt, Asking Congress to Declare War Against Japan (1941),

available at http://www.law.ou.edu/ushistory/infamy.shtml (last visited Dec. 22, 2007).
139. Keith Aoki, No Right to Own?: The Early Twentieth-Century "Alien Lad Lands " as

a Prelude to Internment, 19 B.C. THIRD WORLD L.J. 37, 45 (1998).
140. John Schelhas, Race, Ethnicity, and Natural Resources in the United States: A

Review, 42 NAT. RESOURCES J. 723, 734 (2002).



IND. INT'L & COMP. L. REV.

filling a labor niche created by a coinciding shift in focus among farmers of the
West Coast to more labor-intensive crops.14' Although the local population
initially welcomed the expansion of the labor pool,142 it quickly became less
hospitable as the Japanese immigrants began climbing the economic ladder,
purchasing their own land, and directly competing with white farmers, many of
whom had previously been the immigrants' employers. 43  In the time
surrounding the First World War, the western states began enacting legislation,
now collectively known as the Alien Land Laws, which prohibited the
ownership of real property by "aliens ineligible to citizenship," which included
first generation Japanese immigrants. 144 Though the legislation itself was
framed in racially neutral terms, voter pamphlets candidly explained that the
purpose of these laws was "to drive the Japanese immigrants out of their
agricultural holdings."' 145 These laws succeeded in causing the dramatic decline
of Japanese-owned land between 1920 and 1925.146 The Alien Land Laws,
along with the Immigration Act of 1924, which prevented further immigration
from Eastern Europe, Southern Europe, and Japan, were part of the larger anti-
immigrant fervor that gripped America in the 1920s. '47 However, these laws
were not capable of barring land ownership among second-generation Japanese
immigrants, who were American citizens by virtue of being born on US soil. 48

As such, those among the first wave of immigrants did their best to transfer
what they owned to their children. 49

In the wake of Pearl Harbor, anti-Japanese sentiment resurfaced and it
pressed its attack for the second time. In 1942, an article published in the
nationally circulated Saturday Evening Post illustrated local sentiment when it
quoted the secretary of the Salinas Vegetable Grower-Shipper Association as
saying:

We're charged with wanting to get rid of the Japs for selfish
reasons. We do. It's a question of whether the white man
lives on the Pacific Coast or the brown men. They came into
this valley to work, and they stayed to take over .... They
undersell the white man in the markets.... They work their
women and children while the white farmer has to pay wages
for his help. If all the Japs were removed tomorrow, we'd
never miss them in two weeks, because the white farmers can
take over and produce everything the Jap grows. And we

141. Aoki, supra note 139, at 45.
142. Id. at 52.
143. Id. at 53. See also Schelhas, supra note 140, at 734.
144. Aoki, supra note 139, at 38.
145. Schelhas, supra note 140, at 734.
146. Aoki, supra note 139, at 59.
147. Id. at 62.
148. Id. at 51-52. See U.S. CONST. amend. XIV, § 1.
149. Aoki, supra note 139, at 63.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 251

don't want them back when the war ends, either.150

Government action, once it began, was swift. On February 19, 1942,
President Roosevelt issued Executive Order 9066, giving the Secretary of War
a broad mandate for the strategic control of US territory:

I hereby authorize and direct the Secretary of War, and the
Military Commanders whom he may from time to time
designate, whenever he or any designated Commander deems
such action necessary or desirable, to prescribe military areas
in such places and of such extent as he or the appropriate
Military Commander may determine, from which any or all
persons may be excluded, and with respect to which, the right
of any person to enter, remain in, or leave shall be subject to
whatever restrictions the Secretary of War or the appropriate
Military Commander may impose in his discretion. 151

Shortly thereafter, on March 21, Congress passed an act making it a
misdemeanor to knowingly disregard the restrictions made by military
commanders pursuant to the President's executive order, 152 after thoroughly
examining the executive's intent to evacuate "persons of Japanese ancestry,
citizens as well as aliens," which the Supreme Court later found to have been a
ratification of Executive Order 9066.153 By May, military orders had provided
the groundwork necessary for internment.154 General Dewitt, who commanded
the Western Defense Command, was quoted as saying:

I don't want any Jap back on the Coast.... There is no way to
determine their loyalty.... It makes no difference whether
the Japanese is theoretically a citizen--he is still a Japanese.
Giving him a piece of paper won't change him .... I don't
care what they do with the Japs as long as they don't send
them back here. A Jap is a Jap. 155

Gathered in relocation centers ostensibly for the purpose of being
relocated into the interior of the country, Japanese Americans never went
anywhere. 156 That was because the Governors of the interior states refused to

150. Korematsu v.United States, 323 U.S. 214, 239 n. 12 (1944) (Murphy, J., dissenting).
151. Exec. Order No. 9066, 7 Fed. Reg. 1407 (1942).
152. Approval of military orders, 56 Stat. 173 (1942).
153. Hirabayashi v. United States, 320 U.S. 81, 90-91 (1943).
154. See Jerry Kang, Denying Prejudice: Internment, Redress, and Denial, 51 UCLA L.

Rev. 933, 951 (2004).
155. Id. at 987 (footnote omitted).
156. Id. at 940.



IND. INT'L & COMP. L. REV.

accept them, apparently due to local prejudice. 157 Wyoming's governor went so
far as to say that his constituents had "a dislike of any Orientals, and simply
[would] not stand for being California's dumping ground." He said that if
Japanese Americans resettled in Wyoming, "[t]here would be Japs hanging
from every pine tree. , 158 Utah's governor suggested that they be put into camps
as forced labor. 159

Interment was a reality by the time the first case involving internees
reached the Supreme Court; 16° however, while the Court chose to grant
certiorari, it seems to have delayed its decisions so as not to conflict with the
will of the political branches, ultimately doing nothing to stand in opposition to
the internment of so many people. In hearing the internment cases, the Court
exercised a style of decision making sometimes called "minimalism," an
approach that "say[s] no more than necessary to justify an outcome, and
leav[es] as much as possible undecided."' 61 In its decisions, the Court
segmented the relevant issues (curfew, exclusion, and relocation), addressing
the least controversial issue presented and ignoring the others.' 62 In so doing, it
"obscure[d] its own agency" and thus its role in what took place. 63

An activist named Gordon Hirabayashi brought the first interment case
before the Court 164 in an attempt to challenge interment in its entirety. 165

Hirabayashi had been convicted of violating two military orders - one
controlling the curfew, and the other exclusion - and received two concurrent
sentences. 166 The Court, anxious to avoid the possibility of opening review to
the entire internment process, declined to address exclusion. 67 Instead, it
upheld the curfew, and since Hirabayashi had been given a concurrent sentence,
averred that no reason existed for the Court to address his second conviction for
exclusion. 1

68

The next important case before the Court was Korematsu v. United
States.169 Although the Korematsu and Hirabayashi cases were certified to the

157. Mark D. Friedman, Say "Cheese." Uncle Sam Wants Your Photograph and
Fingerprints or You Are Out of Here. Does America Have A Peace Time Constitution in
Danger of Being Lost?, 30 NOVA L. REV. 223, 239 (2006).

158. Craig Green, Wiley Rutledge, Executive Detention, and Judicial Conscience at War,
84 WASH. U. L. REV. 99, 124 n. 118 (2006).

159. Id.
160. 97,000 people were held in assembly centers by June, 1942. In November, they were

moved to "relocation camps," where they would remain interned. Kang, supra note 155, at 940-
41. Hirabayashi came before the court in June, 1943. See infra note 165.

161. Kang, supra note 154, at 966 (citing CASS R. SuNSTEIN, ONE CASE AT A TIME:

JUDICIAL MINIMALISM ON THE SUPREME COURT 3 (1999)).
162. Id. at 944.
163. Id. at 955.
164. Hirabayashi v. United States, 320 U.S. 81 (1943).
165. Kang, supra note 154, at 945.
166. Friedman, supra note 157, at 241.
167. Kang, supra note 154, at 945.
168. Id. at 945. See also Friedman, supra note 157, at 241.
169. Korematsu v. United States, 323 U.S. 214 (1944).

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 253

Supreme Court at the same time, the Court used procedural mechanisms to
delay deciding Korematsu for about a year and a half.' 70 By that time, the
military was busy mothballing the interment camps and sending the detainees
home, so there was no risk of the Court interfering with the other two
branches.17' In making its decision, the Court again segmented the issues to
avoid addressing the broader issue of internment, instead isolating the issue of
exclusion. 7 2 Although the exclusion order was a fundamental part of the
resulting internment, the Court went to great pains to characterize it as a wholly
separate issue.' 73 As such, the Court reasoned that the remainder of the
internment regime was beyond the scope of the case at hand, while

174simultaneously legitimizing the government's rational of military necessity.
Later, we shall see that the Court already had good reason to believe that the
rationale of military necessity, and the denial that exclusion was founded upon
racist motives, were both false.

The Court finally addressed the issue of internment in Exparte Endo,175

though it declined to review the case on constitutional grounds. 176 First, the
court sanctioned the internment program, saying that "temporary detention"
might be a legitimately implied part of the authorized exclusion program. 177

Second, it absolved both the President and Congress of the internment debacle
by characterizing internment as a plan exclusively of the War Relocation
Authority (WRA), 178 the agency responsible for the administration of
relocation, despite being aware that Congress had received testimony and held
hearings about the mass detainment that was taking place and had continued to
give the WRA annual appropriations to maintain its camps. 179 To exonerate
Congress in this way, the Court used a means of analysis completely at odds
with the reasoning used to authorize curfews in Hirabayashi, where the Court
had reasoned that testimony about curfews before Congress had been sufficient
to suggest that Congress intended to authorize curfews.180

The convictions of Gordon Hirabayashi and Toyosaburo Korematsu were
later overturned under a writ of coram nobis 18' after historians discovered that
the executive branch had suppressed factual evidence during the internment

170. Kang, supra note 154, at 949-50.
171. Cole, supra note 61, at 2575.
172. Kang, supra note 154, at 951-52.
173. See id. at 951-52.
174. Id. at 952-54.
175. Ex parte Endo, 323 U.S. 283 (1944).
176. Friedman, supra note 157, at 241-42.
177. Kang, supra note 154, at 960.
178. Id. at 959-60.
179. Id. at 961-62.
180. Id. at 963.
181. BLACK'S LAW DICTIONARY (8th ed. 2004) ("coram nobis, n. 2. A writ of error directed

to a court for review of its own judgment and predicated on alleged errors of fact. -- Also termed
writ of error coram nobis; writ of coram nobis.").



IND. INT'L & COMP. L. REv.

cases. 182 For example, the prosecution failed to alert the Supreme Court that
General DeWitt had admitted to the Department of War that he did not regard
speedy action against the Japanese population as necessary, and that several
government agencies had discounted the idea that the group posed any threat
(e.g. the "FBI had concluded that the call for evacuation was based primarily
upon public and political pressure, not good data"). 183 The courts ultimately
overturned the convictions because of the prejudice that these omissions evoked
in the Court.184 The problem with this conclusion is that the internment Court
was not ignorant of these facts; during the trial it either received this precise
information or something comparable to it. 185 As the Court was independently
aware of this evidence, the decision could hardly have been prejudiced by the
prosecution's omission of it.

During the war, about 100,000 people were taken from their homes and
put into internment camps, 186 about 70 percent of whom were US citizens.187

Many were forced to sell their homes, businesses, 188 and other property,
suffering substantial loss. 189 Until 1988,19° the only compensation paid by the
government for these losses was provided by the Japanese-American
Evacuation Claims Act of 1948, which paid a maximum of $2500 in damaged
per claim.'

91

4. The McCarthy Era

The seeds for the McCarthy Era were planted before the Second World
War, and were perhaps themselves part of the aftershocks from the Red Scare.
Between 1927 and 1939, the American communist movement saw a massive
resurgence.192 Benefiting politically from both the Great Depression and the
rise of fascism in Europe, it managed to achieve "a position of some influence
in American public life."'193 In counterpoint, the anticommunist movement,
composed of both businessmen and conservative politicians, had not gone
away. 94 In ominous tidings of what was to come, the 1930's anticommunist
movement had largely moved away from its previous anti-immigrant orientation
to one of partisan politics, attacking the New Deal, the power of the federal

182. Kang, supra note 154, at 934-35.
183. Id. at 977-78.
184. Id. at 985-86
185. Id. at 987-92.
186. Green, supra note 158, at 125.
187. Kang, supra note 154, at 940.
188. Friedman, supra note 157, at 240.
189. Schelhas, supra note 140, at 735.
190. Eric L. Muller, Fixing a Hole: How Criminal Law Can Bolster Reparations Theory,

47 B.C. L. REv. 659, 671 (2006).
191. Aoki, supra note 139, at 64.
192. Wiecek, supra note 120, at 394.
193. Id. at 394-395.
194. Id. at 397.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 255

government, and Democrats that they labeled "soft on Communism."' 95 This
would later prove to be an effective attack on the Democratic Party, which
seemingly could only be ameliorated by adopting a focus of equal animosity to
the communist movement.'%

This tension nearly reached a head with World War H. Along with re-
enacting the Espionage Act of 1917, in 1940 Congress passed the Smith Act,' 97

the country's first peacetime sedition law.' 98 In addition to making it illegal to
advocate the desirability of overthrowing the government of the United States
by force or violence, the Smith Act also made it illegal to be a member of an
organization advocating such a position. 199 With the outbreak of war a few
months later, the government began limited efforts to prosecute dissidents on
both the Right and the Left - fascists and communists.2° Soon, however, the
Soviet Union became an important military ally to the United States, and the
prosecution of individuals from the Left quickly abated.2 °1 In fact, the war
ultimately proved to be a benefit for the domestic communist movement. The
American Communist Party, whose membership soared to over 75,000 during
this period, strongly backed the war effort, and the public began to look upon
the Soviet Union more favorably than it ever had before.2°2

Foreign affairs only provided a temporary stay of prosecution; things
changed as the relationship between the new superpowers became less
congenial.20 3 As the months passed, it became increasingly clear that the
Russians did not plan to withdraw their influence from the countries of Eastern
Europe that they had rolled through on their push to Berlin. In retrospect, it has
been argued that Russia merely intended to maintain a buffer between itself and
the states of Europe, because it had been invaded by western powers three times
in twentieth century and had suffered over 30 million casualties in the Second
World War alone. However, the Soviets, sitting on the brink of war ravaged
Western Europe with the most powerful array of land forces in the world, were
the subject of great fear in the West. The American response was to buttress
the military capacity of Western Europe (and later countries in the Middle East,
Central Asia and East Asia) in an effort to contain potential Soviet aggression, a
strategy known as the Truman Doctrine. Over time Europe began to bifurcate
under the influence of the two powers: economically, between the Marshall

195. Id.
196. Id.
197. Smith Act, ch. 439, 54 Stat. 670 (1940).
198. GOLDSTEIN, supra note 85, at 245.
199. Id. Alternately known as the Alien Registration Act, it also required all aliens above

the age of 14 to register with the federal government. About 5 million people were registered.
Lewis M. Stevens, The Life and Character of Earl G. Harrison, 104 U. PA. L. REv. 591, 597
(1956).

200. Wiecek, supra note 120, at 402.
201. Id. at 403.
202. GoLDsTEIN, supra note 85, at 287-89.
203. See id. at 289-96.



IND. INT'L & COMP. L. REV.

Plan, the Bretton Woods regime and the Comecon; militarily, between NATO
and the Warsaw Pact; and politically, between the marginalization of non-
communists in Eastern Europe and the marginalization of communists in
Western Europe.2° If this grinding standoff was tinder for the public anxiety
that was sparked by events such as the Berlin Blockade and the Korean War,
then domestic politics were gasoline to the flame.2°5

America was not in the grip of fear at the conclusion of the war. Even
with the Soviets occupying Eastern Europe, "42 percent of Americans believed
that U.S.-Soviet relations would improve, and only 19 percent felt they would
worsen." 2°6 This made things difficult for the Truman Administration; before it
chose the stance it would take toward the Soviet Union, the Democratic left-
wing was critical of any policy that was overly aggressive towards the Soviets
while Republicans were critical of any policy seen as being soft on
communism. 2 7 Truman's solution was two fold: he took an aggressive policy
toward the Soviets abroad, which stole the wind from the Right's sails by
essentially adopting its position, and labeling the opposition to his policy at
home as part of a subversive plot, dramatically undermining the left wing of his
party.

20 8

Similar activities took place in Congress. In the House of
Representatives, the House Un-American Activities Committee (HUAC)
became a standing committee in 1945.2 9 Its authorizing resolution gave the
committee a mandate to investigate propaganda in the United States;
particularly that which attacked the form of government "guaranteed by the
Constitution," and all related questions that would aid Congress in forming
remedial legislation.210 This reflected the constitutional duty of Congressional
committees to limit the scope of their investigations to gathering information
necessary for making legislation. 2

1 However, since the time of its initial
creation in 1938 as a special committee, the members of HUAC were candid
about their self-perceived role as investigating and exposing "subversives" in
government and private employment in order to subject them to both public
shame and to discrimination from employers, i.e. blacklisting.21 2 In 1947,
HUAC went so far as to officially announce an eight-point program designed to
identify and expose communists and their sympathizers in the federal
government.213 While these activities were politically beneficial to the
committee's members, who traveled around the country to hold their

204. See PAUL KENNEDY, THE RISE AND FALL OF THE GREAT POWERS 480-492 (1989).
205. GOLDSTIN, supra note 85, at 292-99.
206. Id. at 296.
207. Id. at 296-99.
208. Id.
209. Id. at 292.
210. REDISH, supra note 34, at 37.
211. Watkins v. United States, 354 U.S. 178, 187 (1957). REDISH, supra note 34, at 38.
212. Barenblatt v.United States, 360 U.S. 109, 153-158 (1959) (Black, J., dissenting).
213. GOLDsTEIN, supra note 85, at 296.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 257

investigations, often during election years and in their own districts,214 it was
quite beyond the scope of constitutional committee activity. 2

'
5 Though the

Supreme Court was presented with this separation-of-powers issue in cases
such as Watkins v. U.S.,

2 16 and though it noted at various points that the
committee was performing a non-legislative function which negatively
impacted on First Amendment and due process rights, the Court never chose to
take its opportunity to invalidate the committee's investigatory authority.21 7

While events in the House of Representatives played their part in

affecting American public opinion, the real political showdown took place in
the Senate. By the time Senator Joseph McCarthy rose to prominence in
America, anti-communism was already a major issue, and had been used by
both parties to further their political agendas.218 Buoyed by the Korean War,
the Rosenberg prosecution, and Mao's final triumph in China, McCarthy
famously took the reins of strategy for the Republican Party, devastating
political rivals with allegations of "communist infiltration" and racing around
the country to support friendly politicians; indeed, he received more invitations
to speak "than all other republican spokesmen combined. 21 9 Meanwhile,
flagging Democrat candidates also attempted to use red scares in their election
campaigns.

2 20

The President and members Congress, acting primarily to advance their
individual political agendas, worked together to help fuel the country's
hysteria. 22' The issue of anti-communism slowly changed from focused
criticism on immigration and unionism in the early part of the century to a crisis
upon which the country's survival seemed to hinge.222 Fear of communism
gradually increased, to the point in 1954 where an estimated 81% of Americans
felt that communists posed a significant danger to the country.223 Any position
on foreign policy advocating anything less than the strongest possible
opposition to communism was deemed suspect.224 Congress went so far as to
pass the Internal Security Act of 1950,225 which posited the belief of an
international communist conspiracy intended to create world wide dictatorship,
and empowered the Attorney General in a time of national emergency to detain
anyone that he had reasonable ground to believe "probably will engage in, or

214. Id. at 345-46.
215. Watkins, 354 U.S. at 187. REDISH, supra note 34, at 38.
216. Watkins, 354 U.S. at 178.
217. REDISH, supra note 34, at 40-41.
218. GOLDSTEIN, supra note 85, at 320.
219. Id. at 320-25.
220. Id.
221. Id. at 320-21.
222. Wiecek, supra note 120, at 400.
223. Christina E. Wells, Fear and Loathing in Constitutional Decision-Making, 2005 WIS.

L. REv. 115, 134 (2005).
224. GOLDsTEIN, supra note 85, at 371.
225. Internal Security Act of 1950, 64 Stat. 987 (alternately known as the McCarran Act

and the Emergency Detention Act).



IND. INT'L & Comp. L. REV.

conspire with others to engage in, acts of espionage or sabotage. '2 26 Coming on
the heels of Japanese internment during World War II, this statute provided for
the mass roundup of individuals based on the mere prediction of future illegal
activity, 221 forbidding access to the courts by those detained. 228 It was later
repealed in 1971 due to the concern that it could "become an instrumentality for
apprehending and detaining citizens who hold unpopular beliefs and views" -
which reflected the radical extent to which it had empowered the
government.

229

Within this context, the executive resumed prosecuting members of the
communist party.23° Though the political capital gained through these
prosecutions was rooted in the image of combating espionage, spying was not
the legal basis for most of these prosecutions; 231 rather, the government made
most of its prosecutions under the Smith Act,232 convicting people for being
members of the communist party.233 Since the Smith Act directly conflicted
with freedom of speech and freedom of association,234 the question of its
constitutionality was quickly appealed to the Supreme Court after twelve
leaders of the communist party were convicted in 1948 for their membership in
the party.235 While the Court used the clear and present danger test in
reviewing the law's validity, it expanded the scope of the elements of the test
dramatically so that the law could be upheld.236 It first allowed the "present"
requirement to be satisfied by the indication that a rebellion would occur "as
speedily as circumstances would permit., 237 Doing so amounted "to nothing
more than a complete rejection of the relevance of that prong of the test., 238

The Court then gutted the danger requirement, allowing it to be satisfied by the
party being "highly organized," and noting the turmoil that was taking place
elsewhere in the world.239 As a result, rather than gauging the speech "in terms
of the probability of success, or the immediacy of a successful attempt," the
Court expanded the test so that the government could "punish speech even
when it is unlikely to bring about unlawful action, provided the unlawful action
itself [would be] sufficiently 'grave.'' 240

226. Wiecek, supra note 120, at 426-427.
227. GoLDsTEIN, supra note 85, at 323.
228. Wiecek, supra note 120, at 426.
229. Sarah A. Whalin, National Security Versus Due Process: Korematsu Raises its Ugly

Head Sixty Years Later in Hamdi and Padilla, 22 GA. ST. U. L. REV. 711, 718 (2006).
230. REDISH, supra note 34, at 81.
231. Id. at 6.
232. Smith Act, 54 Stat. 670 (1940).
233. REDISH, supra note 34, at 79-80.
234. See supra notes 197-199 and accompanying text.
235. Dennis v. United States, 341 U.S. 494 (1951).
236. See REDISH, supra note 34, at 91-92. Barnum, supra note 111, at 276.
237. Dennis, 341 U.S. at 509-5 10.
238. See REDISH, supra note 34, at 91-92.
239. Dennis, 341 U.S. at 510-511. See also REDISH, supra note 34, at 91-92.
240. Barnum, supra note 111, at 277.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 259

After this green flag, the government increased its prosecutions. The
Truman Administration began targeting second-string leaders of the communist
party, indicting sixty-eight people under the Smith Act in 1951 and 1952.241
The trend continued under Eisenhower, with forty-two indicted from 1953 to
1956.242 When the Supreme Court finally began to overturn convictions made
under the Smith Act in 1957, closing the door it had opened for prosecutors six
years prior, the facts in the overturned cases were little different from those in
the initial cases.243

B. The United Kingdom

1. The British System of Emergency Power

The first major difference between the British and American systems of
government is that the United Kingdom lacks a written constitution. Although
the United Kingdom is guided by centuries of practice and tradition, there are
no Articles I or II to serve as a foundation for identifying the delineated powers
of government, which tends to make the balance between executive and
legislature much more flexible.

Contrary to the common misperception in America, the monarchy
continues to be a valid legal entity in the government of the United Kingdom.

244
Today, the Crown retains several prerogatives, including the right to declare
"war, peace, or neutrality' 245 however, royal powers have been highly
constrained since the final triumph of parliamentary supremacy in the late
seventeenth century.246 As a practical matter, royal prerogatives are exercised
according to the wishes of Parliament, 247 in that they may be limited
legislatively, and in practice are only exercised on the advice of the Prime
Minster. 248 Indeed, the Prime Minster himself is beholden to Parliament

241. GoLDSTEiN, supra note 85, at 332.
242. Id. at 339.
243. Yates v. United States, 354 U.S. 298, 318-19 (1957) (reinterpreting the Smith Act,

determining that it had not in fact been passed with the intent to punish the advocacy of an
abstract doctrine - in complete contradiction of the Court's decision in Dennis in 1951). See
also Corey Robin, Fragmented State, Pluralist Society, 69 Mo. L. REv. 1061, 1079 (2004).

244. BLACK'S LAW DICrIONARY (8th ed. 2004) ("prerogative, n. An exclusive right, power,
privilege, or immunity, usu. acquired by virtue of office").

245. Tarnopolsky, supra note 58, at 198. See also Louis Fisher, Lost Constitutional
Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1201 (2006).

246. Robert C. Sarvis, Legislative Delegation and Two Conceptions of the Legislative
Power, 4 PIERCE L. REv. 317, 318-320 (2006) (parliamentary supremacy is a result of the
Glorious Revolution, in which Parliament played an active role in replacing James II with
William III).

247. Tarnopolsky, supra note 58, at 198.
248. Andrew C.S. Efaw, Free Exercise and the Uniformed Employee: A Comparative

Look at Religious Freedom in the Armed Forces of the United States and Great Britain, 17
COMP. LAB. L.J. 648, 664 (1996).



IND. INT'L & COMP. L. REv.

because, unlike the President of the United States, who can only be removed by
impeachment, 249 the Prime Minster can be removed at any time by a vote of no
confidence. 250 This is another manifestation of the doctrine of parliamentary
supremacy, the doctrinal basis of the United Kingdom's political system, which
defines the legislature as the foremost power in government, unrestrained in its
actions; it may make or unmake any law, and faces no legal restriction on its
ability to do so. 251 It should be noted though that this arrangement is a matter
of convention, i.e. non-legal tradition, rather than "law. 252 Furthermore,
Parliament has lacked even the procedural impediment of bicameralism for
almost a century, because as a result of the Parliament Acts253 the House of
Commons no longer requires the assent of the House of Lords to pass
legislation.254

Parliamentary supremacy has important ramifications for the judiciary.
The origin of the American Bill of Rights can be found in England's tradition
of philosophical thought about the rights of the individual, 255 exemplified in
such documents as the Petition of Right256 and the English Bill of Rights.2 57

While such enunciation of rights may have the political impact of impressing
respect for them in public opinion,258 "no court of law or other body in the
United Kingdom has the constitutional right to challenge an act of
parliament.' '259 In evaluating an act of Parliament, the power of the courts is
limited to interpreting Parliament's intent.260 As the House of Lords stated in
an evaluation of government emergency powers:

in the constitution of this country there are no guaranteed or
absolute rights. The safeguard of British liberty is in the good

249. U.S. CONST. art. II, § 4.
250. John C. Reitz, Political Economy and Separation of Powers, 15 TRANSNAT'L L. &

CONTEMP. PROBS. 579, 593 (2006).
251. Michael L. Principe, Albert Venn Dicey and the Principles of the Rule of Law: Is

Justice Blind? A Comparative Analysis of the United States and Great Britain, 22 Loy. L.A.
INT'L & COMP. L. REv. 357, 360-361 (2000).

252. Adam Tomkins, The Republican Monarchy Revisited, 19 CONST. COMMENT. 737, 742-
47 (2002).

253. Parliament Act, 1911, 1 &2Geo. 5,c. 13. Parliament Act, 1949,12, 13& 14 Geo. 6,
c. 103.

254. Jeremy Waldron, The Internal Point of View in Law and Ethics, 75 FORDHAM L. REV.
1697, 1702 n. 20 (2006).

255. See MICHAEL KENT CURTIS, No STATE SHALL ABRIDGE 64 (1986).
256. The Petition of Right (1628), available at

http://www.constitution.org/eng/petright.htm (last visited Dec. 22, 2007).
257. The English Bill of Rights (1689) (claiming the basic rights of Englishmen include the

existence of independent courts, freedom to petition, freedom to bare arms, freedom of speech in
Parliament, and freedom from cruel and unusual punishment), available at
http://www.yale.edu/lawweb/avalon/england.htm (last visited Dec. 22, 2007).

258. CURTIs, supra note 255, at 21.
259. Tarnopolsky, supra note 58, at 198.
260. BONNER, supra note 13, at 52.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 261

sense of the people in the system of representative and
responsible government which has been evolved.26 '

In the United States, when Congress passes legislation treading upon the
grounds of inalienable rights, the legitimacy of the legislation requires five
Supreme Court Justices to be on board. Parliament has no such limitation.

This status of the courts in the United Kingdom, compared to those in the
United States, represents a doctrinal split in judicial philosophy. In early
seventeenth century England, when "the common law itself supplied the rules
now described as constitutional, 262 Sir Edward Coke, the chief justice of the
Court of Common Pleas, famously stated:

And it appears in our books, that in many cases, the common
law will controul Acts of Parliament, and sometimes adjudge
them to be utterly void: for when an Act of Parliament is
against common right and reason, or repugnant, or impossible
to be performed, the common law will controul it, and adjudge
such Act to be void.263

In colonial American, this rule was rephrased to say: "[a]n act contrary to

the constitution is void.' '264 Though this doctrine was effectively dead in
England by the time of the American Revolution,265 it lived on in the colonies,
with Chief Justice John Marshall ultimately introducing the concept into the
federal judiciary in Marbury v. Madison.266

The constitution is either a superior, paramount law,

unchangeable by ordinary means, or it is on a level with
ordinary legislative acts, and like other acts, is alterable when
the legislature shall please to alter it. If the former part of the
alternative be true, then a legislative act contrary to the
constitution is not law: if the latter part be true, then written
constitutions are absurd attempts, on the part of the people, to
limit a power, in its own nature illimitable.

Certainly all those who have framed written constitutions
contemplate them as forming the fundamental and paramount
law of the nation, and consequently the theory of every such

government must be, that an act of the legislature, repugnant

261. Liversidge v. Anderson, [1942] A.C. 206 (H.L.), available at
http://uniset.ca/other/cs5/1942AC206.html (last visited Dec. 22, 2007).

262. ORTm, supra note 19, at 99.
263. Id. at 18-20.
264. Id. at 20.
265. See id. at 25.
266. Marbury v. Madison, 5 U.S. 137 (1803).



IND. INT'L & COMP. L. REv.

to the constitution, is void.267

Some scholars have speculated that the absence of judicial review and a
binding list of fundamental rights in the United Kingdom has caused the
government to afford itself more power than it otherwise would have during
times of emergency.26

Somewhat paradoxically, while the legislature of the United Kingdom is
supreme in its authority, it has a habit of ceding its authority to the executive.
Whereas the U.S. Constitution limits Congress in the degree to which it may
delegate authority to the President with the prescription "[aill legislative Powers
herein granted shall be vested in a Congress of the United States, '269 Parliament
faces no such restriction. Further, when it delegates authority for emergency
powers, it typically does so through means that marginalize the ability of the
judiciary to scrutinize the executive's actions, such as by "fram[ing]
discretionary powers in subjective terms, rather than in the objective terms
which more clearly impart a judicially reviewable standard" and by being
"rather vague as to the criteria governing the exercise of [that] power." 270 With
judicial scrutiny thus obviated, oversight of the executive's use of emergency
power is left to the legislature. 27 The effectiveness of Parliament's role as
"watchdog," however, is somewhat limited. Though the power to legislate
appears to give Parliament full control of emergency powers, "it is well
known... that legislation is made elsewhere and legitimated in Parliament," that
emergency legislation is often brought forward and passed quickly, and that it is
rare for its key provisions to be amended.272 And further, although Parliament
sometimes inserts provisions into enabling acts which require the Parliament to
approve executive regulations before they take affect, or which allow
Parliament to annul them later,273 a dramatic asymmetry of information exists
between the government's executive actors and "the watchdogs" in regard to

274how the executive's powers are actually being used.

2. War Powers (The First and Second World Wars)

It was no surprise to anyone when war came to the European continent in
1914; tensions had been building for a decade before the first shots were

267. Marbury, 5 U.S. at 177.
268. Dana Keith, In the Name of National Security or Insecurity?, 16 FLA. J. INTL L. 405,

415 (2004).
269. U.S. CONST. art.I, § I. See Limitations on rule; permissible delegation, 16A AM. JUR.

2D Constitutional Law § 297 (2006).
270. BONNER, supra note 13, at 53-54.
271. JOHN EAVES, JR., EMERGENCY POWERS AND THE PARLIAMENTARY WATCHDOG 14

(1957).
272. BONNER, supra note 13, at 37-38.
273. TONY BUNYAN, THE POLITICAL POLICE IN BRITAIN 55 (2d ed. 1976).
274. BONNER, supra note 13, at 49.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 263

fired.27 5 Shortly after the outbreak of hostilities, Parliament passed the Defence
of the Realm Act 1914 (DORA)276 without debate.277 DORA allowed the
executive to pass regulations with the force of law278 for the purpose of public
safety and "the defence of the realm. 279 The regulations that were created gave
the government extensive control over the economy;280 the power to detain
individuals on the basis of "hostile origin or association," with 30,000 people
ultimately being detained without trial; as well as the power to prohibit
assemblies, clear areas, and impose curfews. 28 1 During this time, the
government also used DORA to constrain freedom of speech by punishing the
causation of "mutiny, sedition, or disaffection" among the military or civilian
population, and freedom of the press by prohibiting the publishing "of
statements or reports likely to 'cause disaffection' or to 'prejudice the
recruiting, training, discipline, or administration' of the military., 282 Although
DORA was not popular among the British people, 28 popular opinion seemed to
indicate the restriction on freedom was necessitated by the war with
Germany.28

The Second World War was also seen on the horizon long before its
arrival.285 Perhaps the primary difference for Britain in the time leading up to
these conflicts was that prior to the First World War it had been in a superior
position compared to its adversaries,286 whereas it entered the Second World
War as the underdog.287 As such, it should be of little surprise that emergency
regulations were again passed with only nominal debate 288 

- this time in the
form of the Emergency Powers (Defence) Act 1939 (EPA 39).289 The
executive was essentially given the same authority: to create regulations for the
purpose of "public safety, the defence of the realm, the maintenance of public
order, the efficient prosecution of the war, and the maintenance of supplies and
services essential to the life of the community. ' '290 Among other choices,

275. See KENNEDY, supra note 204, at 324-328.
276. Defence of the Realm Act, 4 and 5 Geo. V, c. 29.
277. EAVES, supra note 271, at 8-9.
278. Rachel Vorspan, Law and War: Individual Rights, Executive Authority, and Judicial

Power in England During World War 1, 38 VAND. J. TRANSNAT'L L. 261, 267 (2005).
279. EAVES, supra note 271, at 8-9.
280. Id.
281. Vorspan, supra note 278, at 270. Daniel Moeckli, The Selective "War on Terror":

Executive Detention of Foreign Nationals and the Principle of Non-Discrimination, 31 BROOK.
J. INT'L L. 495,500 (2006).

282. Id. at 270.
283. EAVES, supra note 271, at 8-9.
284. Vorspan, supra note 278, at 271-72. EAVES, supra note 263, at 8-9.
285. See KENNEDY, supra note 203, at 433-39.
286. Id. at 332-33.
287. Id. at 439-41.
288. BONNER, supra note 13, at 38.
289. Emergency Powers (Defence) Act 1939, 2 and 3 Geo. 6, c. 62.
290. EAVES, supra note 271, at 15-16.



IND. INT'L & Comp. L. REv.

internment was again practiced, with about 28,000 people being interned.29'
Parliament did little to constrain the executive in its exercise of legislative

power under DORA. The enabling statute contained no specific provisions
requiring Parliament to approve, or allowing it to annul, regulations issued by
the executive.2 92 Further, it was written to remain in effect until the executive
declared hostilities to have ended, 293 which did not occur until 1920,294 a flaw
which would not be repeated in future legislation.2 95 Regardless, the judiciary
was able to exercise a degree of control over the executive through the language
of DORA.296 The courts interpreted it to have created an objective standard for
the executive to follow in creating regulations for the defense of the realm, in
theory allowing regulations to be struck down if they were found to fall outside
of Parliament's mandate.297

In the EPA 39, Parliament expanded its watchdog function, while
circumscribing the role of the courts. Regulations came into force
automatically, and had the power to amend or repeal existing laws, but either
house of Parliament could annul a regulation within the first 28 sitting days
after its issuance.298 Further, rather than allowing the executive to determine
when these emergency powers would cease to be in effect, the act was set to
expire after twelve months if it was not renewed, though it wasn't actually
repealed until 1959.299 This time, the judiciary's influence was limited because
the legislation was framed in a subjective standard, merely requiring the
executive to show that its regulations appeared to be necessary or expedient. 3

00

This measure may have been unnecessary; because even when the courts were
in a position to wield influence over the executive they exhibited a noticeable
deference, apparently with the rationale that the necessities of war justified the
expansion of government power at the expense of individual rights.30 ' The
judiciary event went so far as to interpret legislative mandates in a broader
manner than would normally apply in order to support the executive's aims. 302

3. Labor Emergencies

In the early twentieth century, Great Britain was home to an increasingly
powerful labor movement. Particularly strong were the country's coal miners,
railroad workers, and transportation workers, who had formed a loose affiliation

291. Moeckli, supra note 281, at 500.
292. BONNER, supra note 13, at 41.
293. Tarnopolsky, supra note 58, at 200.
294. BUNYAN, supra note 273, at 52.
295. BONNER, supra note 13, at 41.
296. EAVES, supra note 271, at 18.
297. Id.
298. BuNYAN, supra note 273, at 55. See also EAVES, supra note 271, at 18.
299. BUNYAN, supra note 273, at 55. See also EAVES, supra note 271, at 18.
300. EAVES, supra note 271, at 18.
301. See BONNER, supra note 13, at 55-59.
302. Id. at 59.

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2008] COMPARATwE ANALYSIS OF THE USE OF EMERGENCY POWERS 265

known as the Triple Alliance. °3 This perturbed government officials, who
recognized that a strike by the alliance of unions had the potential to bring the
country to a standstill. 304  Further, in the shadow of the 1917 Russian
Revolution, the government feared the social upheaval which could result from
such a massive strike might lead to revolutionary turmoil in Britain.3 °5 Since
1914, the government had been able to use legislation such as DORA during
labor emergencies, but as the war and access to those war powers began
drawing to a close, Parliament began to look toward legislation which could be
used for similar purposes during peacetime.

Parliament ultimately passed the Emergency Powers Act 1920 (EPA
1920)307 to give the executive emergency power to forestall the inhibition of a
community's access to the "essentials of life, 30 8 empowering the government
to counter "major strikes, civil disorders and pre-revolutionary situations."3°

The act was introduced by Parliament in the midst of a miners' strike, which
spectators thought the railroad workers might soon join, making it "precisely
the time when Parliamentary and public opinion was least able dispassionately
to weigh up either its short-terms merits or long-term consequences." 310

However, as much as the EPA 1920 was demanded by the representatives of
certain parts of the country, it faced substantial opposition from many other
legislators. 31' The dramatic division in public sentiment is likely the reason
why the emergency powers created were far less extensive than those afforded
to the government during the wars in 1914 and 1939.312

Under the EPA 1920, the executive was again vested with the power to
create regulations after declaring a state of emergency, this time to "restore
order and maintain supplies" whenever it appeared "to the government that the
essential services of the country" were threatened by "any action [that] has been
taken or is immediately threatened by any persons or body of persons. 31 3 As
was true in the later EPA 39, the subjective element of this prescription vastly
diminished the potential scope for judicial review of the executive's actions.314

Parliament, however, perhaps having already learned its lessons from DORA,
implemented several watchdog functions. Though it could not directly annul a
regulation, any regulation which Parliament did not approve within seven days
would have become void. 315 Further, the whole bundle of regulations had to be

303. Id. at 224.
304. See id. at 224.
305. BuNYAN, supra note 273, at 10.
306. Id.
307. Emergency Powers Act, 10 & 11 Geo. V, c. 55.
308. EAVES, supra note 271, at 9.
309. BUNYAN, supra note 273, at 52-53.
310. BONNER, supra note 13, at 39-40.
311. See EAVES, supra note 271, at 9.
312. See BONNER, supra note 13, at 13.
313.BNYAN, supra note 273, at 52-53.
314.See BONNER, supra note 13, at 234.
315. Id. at 43.



IND. INT'L & Comp. L. REV.

renewed by Parliament every month.3 16 The criticism the bill faced during the
debates over its passage also led its supporters to add explicit limits to the scope
of the executive's rulemaking power.3 17 Accordingly, the government could
not criminalize participation in a strike, it could not impose military or
industrial conscription, and it could not "punish by fine or imprisonment
without trial. 318

Aside from those limitations, the executive had the power to suspend any
law in order to achieve its goals.319 The regulations created by the government
were mostly designed to allow soldiers to do civilian work, including the work
of dockworkers, sewage workers, prison officers, etc.320 An amendment to the
law in 1964 allowed the use of soldiers in agricultural work.32' Regulations
were also used to expand police powers for stopping individuals, entering
homes, searching, and arresting.322

The EPA 1920 was activated 12 times323 before it was replaced in 2004
by the Civil Contingencies Act (CCA).324 The CCA again allows the executive
to create regulations, if it is "satisfied [the regulations are] appropriate for the
purpose of preventing, controlling or mitigating an aspect or effect ' 325 of an
emergency that "has occurred, is occurring or is about to occur., 326 This is
clearly another set of subjective criteria, limiting supervision by the judiciary.
Under this legislation, the term "emergency" encompasses war, terrorism, or
any other event or situation that "threatens serious damage" in the form of loss
of human life, human illness or injury, damage to property, the disruption of
communication, transportation, the supply of food or fuel, etc. Parliament
continues to play an important role because regulations will lapse after seven
days if not approved, and may be annulled or amended subsequently.327

4. Anti-Terrorism

The British tradition of anti-terrorism legislation was spawned as a means
of combating the Irish Republic Army (IRA), which remained the focus of this
branch of law for over half a century.

The Prevention of Violence (Temporary Provisions) Act 1939 (PVA

316. BUNYAN, supra note 273, at 53.
317. BONNER, supra note 13, at 39-40.
318. Id. at 234-35. However, this limitation didn't necessarily preclude detention regarded

as preventative rather than punitive. Id.
319. BUNYAN, supra note 273, at 53.
320. BONNER, supra note 13, at 229-30.
321. Id. at 229.
322. Id. at 239.
323. Id. at 13.
324. Civil Contingencies Act, 2004, c.36 (Eng.).
325. Id. § 22.
326. Id. § 21.
327. Id. § 27.

[Vol. 18:1



2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 267

39),328 the country's first piece of anti-terrorism legislation, was drafted in

response to an IRA bombing campaign in England.329 Passed in July after four
days of Parliamentary consideration, 330 the new law had broad suppo& 31 which
was buttressed by the fear that the IRA was being "actively stimulated" by the
United Kingdom's wartime enemies on the continent. 332 By that time, 66
people had already been arrested for their suspected participation in the 127
attacks which had occurred thus far.333

Unlike the previous examples of British emergency legislation examined
in this Note, the PVA 39 did not give the executive the authority to create
regulations. 334 Instead, it enabled the executive to require foreigners to register
with the government, to expel people from the country if reasonably satisfied
the person "was engaged in the preparation or instigation of' an act of violence,
or to prohibit that person's entry if reasonably satisfied that the person might be
trying to enter "with a view to being so engaged." 3" It also empowered the
police to arrest people they "reasonably suspected" to be guilty of one of the
terrorism-related offences created by the PVA 39, "of being subject to an
expulsion or prohibition order, or of being concerned in the preparation or
instigation of acts of violence to which the Act was directed. 3 36 Although the
PVA 39 was passed with the intention of being a short-term statute with a
lifespan limited to two years if not renewed,337 and although the bombing
campaign it was designed to combat ceased in March 1940,338 Parliament kept
it alive until 1954, 339 then resurrected the majority of its provisions less than
twenty years later.3

Northern Ireland itself was subject to an additional statutory regime at
this time341 known as the Civil Authorities (Special Powers) Act, 342 which had
been instituted in 1922 at the time of the Irish partition, a with the intention of

328. Prevention of Violence (Temporary Provisions) Act, 1939,2 & 3 Geo. 5, c. 50 (Eng.).
329. BONNER, supra note 13, at 14.
330. Id. at 38-39; TIM PAT COOGAN, THE IRA: A HISTORY 97 (1994).
331. Donohue, supra note 12, at 316.
332. COOGAN, supra note 330, at 97.
333. Id.
334. See BONNER, supra note 13, at 168.
335. Id. at 168.
336. Id.
337. DONOHUE, supra note 12, at 306.
338. COOGAN, supra note 330, at 97; BONNER, supra note 13, at 14.
339. DONOHUE, supra note 12, at 306-07; see also Reuven Young, Defining Terrorism: the

Evolution of Terrorism as a Legal Concept in International Law and its Influence of Definitions
in Domestic Legislation, 29 B.C. INT'L & COMP. L. REv. 23, 73 (2006).

340. DONOHUE, supra note 12, at 307.
341. Colm Campbell, 'Wars on Terror' and Vicarious Hegemons, 54 INT'L & COMP. L.Q.

321,335 (2005). In fact, Northern Ireland has arguably been in a state of permanent emergency
since its creation. Id.

342. Civil Authorities (Special Powers) Act, 1922, 12 & 13 Geo. 5, c. 5 (N. Ir.).
343. Stephen J. Schulhofer, Checks and Balances in Wartime, 102 MICH. L. REv. 1906,

1936 (2004).



IND. INT'L & COMP. L. REV.

only being in force for a year.344 This act gave the local executive authorities
the power to establish regulations "as may be necessary for preserving the
peace and maintaining order," hundreds of which were ultimately issued,345 and
served as the legal basis for internment without trial in Northern Ireland
multiple times346 by the early 70s, when a renewed IRA bombing campaign
began in England.347 In 1971, internment powers were again established and
were actively used until 1975, during which time almost two thousand people
were detained without trial.348 Some detainees were subject to extreme
interrogation techniques, such as being forced to stand in stress positions for
hours, hooded, subject to loud noise, and were deprived of food, water and
sleep,349 for the purpose of eliciting confessions and intelligence. 350 It was also
alleged the detainees were subject to beatings, electrical shocks, and the
forcible administration of drugs. 351

Soon thereafter, Parliament suspended the Northern Ireland Parliament,
taking direct control of the region,352 and replaced the Special Powers Act 353

with the Northern Ireland (Emergency Provisions) Act, 1973 (EPA 73).354 This
new legislation did little to restrain the government's internment powers;355

rather, the significant change that it made was to introduce into Northern
Ireland a system for trials known as the "Diplock Court., 35 6 Used to try
suspected terrorists, the two most notable features of this system were the
absence of ajury and special rules of evidence; in particular, the courts allowed
confessions obtained through "intensive interrogations" into evidence.357 At
one point in time, confessions were the primary evidence relied upon in 90
percent of the cases heard before Diplock Courts.358 Other evidentiary changes
in these courts included the infringement of the right to silence, the use of

344. Laura K. Donohue, Anti-Terrorist Finance in the United Kingdom and United States,
27 MICH. J. INT'L L. 303, 325 n. 91 (2006).

345. Civil Authorities (Special Powers) Act § 1; see also Laura K. Donohue, Terrorist
Speech and the Future of Free Expression, 27 CARDOZO L. REV. 233, 256 (2005).

346. Moecki, supra note 281 at 503 n. 46. In 1922-24, 1938-45, and 1956-61. Id.
347. DONOHUE, supra note 12, at 316.
348. Michael P. O'Connor & Celia M. Rumann, Into the Fire: How to Avoid Getting

Burned by the Same Mistake Made Fighting Terrorism in Northern Ireland, 24 CARDOZo L.
REV. 1657, 1678 (2003).

349. Sara A. Rodriguez, The Impotence of Being Earnest, 33 NEw ENG. J. ON CRIM. & CIV.
CONFINEMENT 61, 98 n. 237 (2007); Diane Marie Amann, Guantanamo, 42 COLuM. J.
TRANSNAT'L L. 263, 327 (2004).

350. S.P. Zochowski, Will Labour Keep its Promise?, 5 J. INT'L L. & PRAc. 403, 411
(1996).

351. Campbell, supra note 341, at 336.
352. Donohue, supra note 345, at 258.
353. Keith, supra note 268, at 427.
354. Northern Ireland (Emergency Provisions) Act, 1973, c. 53, § 21 (Eng.).
355. Schulhofer, supra note 343, at 1937.
356. Keith, supra note 268, at 427.
357. Campbell, supra note 341, at 327.
358. Id. at 327 n. 31.

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY PowERs 269

secret witnesses, and the use of "supergrasses, 359 a term used for "former para-
military informants given inducements to testify against alleged co-
conspirators.,, 360 These informants often testified against a large number of
defendants in any one trial, giving some the impression that these prosecutions
were show trials.36

Between 1971 and 1974, while there were several bombings in England,
at locations such as the Old Bailey, Whitehall, Scotland Yard and the Tower of
London, 362 special anti-terrorism legislation was not introduced outside of
Northern Ireland. This changed in the wake of the politically inflammatory
Birmingham pub bombings, in which 21 people were killed and roughly 168
injured. 363 In response to popular outrage similar to that of 1939,364 Parliament
passed a new piece of anti-terrorism legislation after a single day of
deliberation 365 known as the Prevention of Terrorism (Temporary Provisions)
Act 1974 (PTA 74),36 the provisions of which had been drafted a year earlier
without being presented for passage. 367 It was basically a reintroduction of
PVA 39 with the addition of proscription,368 which allowed the government to
proscribe any organization appearing to be "concerned in terrorism occurring in
the United Kingdom and connected with Northern Irish affairs, or in promoting
it or encouraging it."' 369 Membership in such a group warranted a punishment
of up to 5 years in prison.37 ° It also became a crime to publicly display support
of a proscribed organization, or to arrange a meeting of three or more persons

371that would be addressed by a member of a proscribed organization. Judicial
review over the PTA 74 was technically greater than judicial review in the war
powers cases and the earlier antiterrorism legislation because the courts began
to refuse to allow "subjective language in statutes to negate their powers to
review ministerial action," though in practice the court would "only be willing
to interfere with a decision on this issue where the suspect could establish that
the Secretary of State acted in bad faith, a burden impossible to discharge in

19372practice.
Though the PTA 74, like PVA 39, was meant to be implemented for a

limited period, it included the same obstacles to repeal as its predecessor.

359. John D. Jackson and Sean Doran, Conventional Trials in Unconventional Times: The
Diplock Court Experience, 4 CRiM. L.F. 503, 507 (1993).

360. O'Connor, supra note 348, at 1697 n. 184.
361. Jackson, supra note 359, at 507.
362. COOGAN, supra note 330, at 293.
363. Id; see also BONNER, supra note 13, at 39.
364. Keith, supra note 268, at 428.
365. BONNER, supra note 13, at 39.
366. Prevention of Terrorism (Temporary Provisions) Act, 1974, c. 56 (Eng.).
367. BONNER, supra note 13, at 39.
368. DONOHUE, supra note 12, at 307.
369. BONNER, supra note 13, at 183.
370. BUNYAN, supra note 273, at 54-55.
371. BONNER, supra note 13, at 183-84.
372. Id. at 193.



IND. INT'L & COMP. L. REV.

Structurally, it contained the same protection: it would expire after two years if
not renewed by Parliament, 373 but again, this nominally temporary legislation
was renewed consistently, decades into the future.374 The barrier was largely
political; the goals of the legislation were fuzzy, giving no real indication of
what would have to be achieved before the emergency powers would cease to
be necessary.375 In effect, "the burden shifted from those supporting emergency
measures to prove that they were imperative, to individuals seeking to repeal
the legislation needing to demonstrate that an emergency no longer existed. 37 6

Ultimately, the powers of the PTA 74 were replaced by new legislation, the
Terrorism Act 2000 (TA 2000),377 which was, in part, a blending of the PTA 74
and the EPA 73.378 Unlike the earlier measures, TA 2000 was explicitly
intended to be permanent, and did not need to be renewed by Parliament. 379

The other major difference from past anti-terrorism legislation was the use of a
broader definition of terrorism, which expanded the focus from domestic
terrorism to include international terrorism. 380 Its applicability is no longer
confined by geography, including any act "designed to influence the United
Kingdom (or a foreign government) or to intimidate a population that is done
for the purpose of advancing a political, religious, or ideological cause,'381

including those endangering life and public safety382 or disrupting power
supplies, water supplies, or key computer systems.383

TA 2000 was in effect for a very short time before the events of
September 11th in the United States helped usher new legislation through
Parliament, 38 though it was passed without a sense of public emergency
comparable to that which accompanied the United States Patriot Act. 385 This
new legislation was the Anti-Terrorism, Crime and Security Act 2001
(ATCSA).386 While its implementation brought some changes to the
government's handling of terrorist finances, aviation security, and the nuclear
industry,387 the most notable addition to Great Britain's antiterrorism regime
was the possibility of indefinite detention "to prevent [a] suspected noncitizen

373. DONOHUE, supra note 12, at 307.
374. See Keith, supra note 268, at 429-31.
375. DONOHUE, supra note 12, at 317.
376. Keith, supra note 268, at 429.
377. Terrorism Act, 2000, c. 11 (U.K.)
378. Keith, supra note 268, at 429.
379. Id. at 431.
380. Richard Raimond, The Role of Indefinite Detention in Antiterrorism Legislation, 54

U. KAN. L. REV. 515,533-34 (2006).
381. Young, supra note 339, at 74.
382. Id.
383. Keith, supra note 268, at 432.
384. Id. at 432.
385. Id. at 433-34.
386. Anti-Terrorism, Crime and Security Act, 2001, c.24 (U.K.).
387. Sir David Williams, The United Kingdom's Response to International Terrorism, 13

IND. INTL & COMP. L. REV. 683, 693 (2003).

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2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 271

terrorist from engaging in any future terrorist activities. ' 388 This measure could
only be utilized against noncitizens who could not be deported because the
United Kingdom's human rights treaty obligations prevented it from deporting
a person to a destination country where the person faced the possibility of being
tortured.389

This was a significant departure from past practice in the UK - while
internment for reasons related to terrorism had been instituted repeatedly in
Northern Ireland,39 it had never been used to combat terrorism in the
mainland.39'

The possibility of indefinite detentions conflicted with the United
Kingdom's obligations under the European Convention on Human Rights
(ECHR), an agreement protecting civil and political rights similar to the
protections found in the U.S. Bill of Rights.392 Article 15 of the ECHR permits
its members to derogate from some of its requirements "[iun time of war or
other public emergency threatening the life of the nation," which is essentially a
means of condoning the use of emergency powers, but only to the extent
"strictly required by the exigencies of the situation." 393 At the same time, the
Human Rights Act 1998394 allows the House of Lords, in its judicial capacity,
to "declare a statute is incompatible with fundamental human rights norms,'395

with the expectation that Parliament would then modify such a statute to
remove the incompatibility.

396

When a case involving detention under ATCSA came before the House
of Lords in accordance with the Human Rights Act 1998, 397 the Law Lords
evaluated two questions: (1) whether a "public emergency threatening the life
of the nation within the meaning of Article 15(1)" existed and (2) whether the

388. Keith, supra note 268, at 434.
389. Raimond, supra note 380, at 534.
390. Donohue, supra note 345, at 318 ("In Northern Ireland, for instance, between 1922

and 1972, internment occurred on four occasions"); see also Christopher K. Connolly, Living on
the Past: the Role of Truth Commissions in Post-Conflict Societies and the Case Study of
Northern Ireland, 39 CORNELL INT'L L.J. 401, 415 (2006), noting

[t]he rule of law never applied to Northern Ireland in the same way as it did to
other parts of the UK. Britain turned a blind eye towards the discriminatory
practices of Northern Ireland's Unionist government between 1921 and 1969, and
after the outbreak of the Troubles it implemented practices of prolonged
internment and secret, non-jury "Diplock Courts" that were employed liberally,
especially against the Catholic community.

Id.
391. Keith, supra note 268, at 434.
392. Id. at 451.
393. Raimond, supra note 380, at 535.
394. Human Rights Act, 1998, c. 42 (U.K.).
395. Mark Tushnet, Weak-Form Judicial Review and "Core" Civil Liberties, 41 HARV.

C.R.-C.L. L. REv. 1,7 (2006).
396. Id.
397. A v. Sec'y of State of Home Dep't, [2005] All E.R. 169 (Eng.)



IND. INT'L & COMP. L. REv.

derogation was "strictly required by the exigencies of the situation. 39 8 The
Law Lords were deferential in evaluating the first element, indicating it was a
political judgment for which the political branches were better suited, 399 but
found detention under ATCSA violated the proportionality requirement of the
second element, because it ignored similar threats presented by British citizens
(noting evidence that roughly a thousand had attended training camps in
Afghanistan), and allowed for the detention of individuals who had links to a
terrorist organization presenting no direct threat to the United Kingdom,
divorcing detention from the original emergency justifying derogation. 400

The House of Lords "strongly recommend[ed]" the detention aspect of
the ATCSA be replaced, suggesting new legislation should either deal with all
terrorism, "whatever its origin or the nationality of its suspected perpetrators"
or be drafted in a manner requiring no derogation from the ECHR. 40

Following the decision, Parliament abolished the detention provisions created
under the ATCSA, replacing detention with the power to issue "control orders"
created by the Prevention of Terrorism Act 2005 (PTA 2005).402 These control
orders, issued against terrorism suspects, can require a range of measures,
including curfews, electronic tagging, forbidding communication with other
terror suspects, and indefinite house arrest; a control order would apply equally
to citizens and noncitizens. It is unclear whether some of these provisions also
conflict with the ECHR Article 5.44'

Mostly recently, in response to the London bombings in July 2005,404 the
United Kingdom enacted the Terrorism Act 2006 (TA 2006)405 after six months
of debate.4°6 PTA 74 had already criminalized speaking in support of
proscribed organizations, and TA 2000 expanded the subject matter basis for
proscribing a group. TA 2006 expanded the criminalization of speech, 47

making it a crime to make "a statement that is likely to be understood by some
or all of the members of the public to whom it is published as a direct or
indirect encouragement or other inducement to them to the commission,
preparation or instigation of acts of terrorism," by "glory[ing] the commission
or preparation (whether in the past, in the future or generally) of such acts." 408

398. Raimond, supra note 380, at 537.
399. Mark Elliott, United Kingdom: Detention Without Trial and the "War on Terror," 4

INT'L J. CONST. L. 553,555-56 (2006).
400. Raimond, supra note 380, at 538.
401. Id. at 539.
402. Prevention of Terrorism Act, 2005, c. 2 (U.K.).
403. Raimond, supra note 380, at 539; Jane Andrewartha, English Maritime Law Update:

2005, 37 J. MAR. L. & COM. 359 (2006).
404. Kent Roach, Must We Trade Rights for Security? The Choice Between Smart, Harsh,

or Proportionate Security Strategies in Canada and Britain, 27 CARDOZO L. REv. 2151,2172
(2006).

405. Terrorism Act, 2006, c. 11 (U.K.).
406. Barnum, supra note 111, at 292 n. 134.
407. Roach, supra note 404, at 2179-80.
408. Terrorism Act, 2006, c. 11 (U.K.).

[Vol. 18:1



2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS 273

III. FINAL THOUGHTS

The House of Lords' effect on the indefinite detention portion of the
Anti-Terrorism, Crime and Security Act 2001 has led to some controversy in
the United Kingdom, because, even though the House of Lords was acting
under the authorization of another piece of Parliamentary legislation, it
represented a boldness that has been absent from the British judiciary for quite

some time.4°9 Commentators wondered to what degree the Human Rights Act
1998 would free the British courts from their traditional shackles, and if
through the interpretation of the European Convention on Human Rights the
courts would help to curb "the worst excesses of majoritarianism."410

Either way, British courts would lack the power to strike down laws
violating the ECHR, but would that make a significant difference? No
conclusive reason exists to believe the power of judicial review itself has
prevented majoritarian excess. This Note has documented instances in which
the U.S. Supreme Court bent over backward to facilitate the panicked,
majoritarian impulses of the country. Judge Learned Hand once said:

I often wonder whether we do not rest our hopes too much
upon constitutions, upon laws and upon courts. These are false
hopes.... Liberty lies in the hearts of men and women; when
it dies there, no constitution, no law, nor court can save it; no
constitution, no law, no court can even do much to help it.
While it lies there it needs no constitution, no law, no court to
save it.

4 1

It may be that the benefit provided to the United Kingdom by the ECHR and
the HRA - an explicitly enumerated system of rights, and an independent body
of judges to gauge how well contemporary legislation conforms to those rights
- is the primary benefit that America has received from the Bill of Rights and
judicial review. As Madison said when he argued in favor of adopting the Bill
of Rights:

It may be thought that all paper barriers against the power of

the community are too weak to be worthy of attention. I am
sensible they are not so strong as to satisfy gentlemen of every
description who have seen and examined thoroughly the
texture of such a defense; yet, as they have a tendency to
impress some degree of respect for them, to establish the
public opinion in their favor, and rouse the attention of the
whole community, it may be one means to control the majority

409. See Elliott, supra note 399, at 553.
410. Id. at 560-61.
411. Cole, supra note 61, at 2568.



IND. INT'L & COMP. L. REv.

from those acts to which they might be otherwise inclined.412

Even if the only real check against a tyrannical majority is political
sentiment, our straits may not be overly dire. Support for human rights in the
United Kingdom was great enough to force Parliament to alter course, and the
United States has witnessed a dramatic increase in the number of groups
devoted to human and civil rights in recent years, especially since the end of the
Cold War.413 Then again, polls in the United States have found that almost half
of the population associate Islam with violence, a quarter holds extreme anti-
Muslim views,414 nearly one-quarter believes that the government should be
allowed to use torture in some circumstances, 4 5 while popular television
pundits call for explicit racial profiling.416 The use of racial profiling by
London police, along with a shoot-to-kill policy for potential terrorists, has also
been condoned in some quarters.417

How the chips will fall in our time is anyone's guess. As for myself, I
will leave you with the words of Mark Twain: history does not repeat itself - it
rhymes.418

412. CuRTs, supra note 255, at 21.
413. Id. at 2584-85.
414. Jim Lobe, Sharp Rise in Anti-Muslim incidents reported, NEW PITTSBURGH COURIER,

Sept 28, 2006, at A8, available at
http://www.washingtoninformer.com/RELAntiMuslim2006Sep28.html.

415. See Marks, supra note 36, at 572.
416. Bill O'Reilly, Talking Points: More Airline Terror Chaos, Fox NEWS,

http://www.foxnews.com/story/0,2933,208900,00.html (August 17, 2006).
Now it's long past time for the USA to stop the nonsense and institute profiling at
airports. We're not at war with Granny Frickett. We're at war with Muslim
fanatics. So all young Muslims should be subjected to more scrutiny than
Granny. And we should blend some Israeli screening procedures with our own.
For example, trained security people should receive the passenger list on every
flight and interview those people most likely to be terrorists.... Passengers who
are Muslims ages 16 to 45 all should be spoken with. And if the ACLU doesn't
like it, tough. This isn't racial profiling. This is criminal profiling .... The
wrong-headed notion that you can't scrutinize Muslims, even though the terror
war is driven by them, is beyond dumb. It's self-defeating and acutely dangerous.
Profiling must begin now.

Id. See also Ann Coulter, Terrorists Win: Deodorant Banned from Airlines,
http://www.anncoulter.com/cgi-local/article.cgi?article=143 (August 16, 2006) ("Without the
ethnic profiling going on outside of airports, no security procedure currently permissible inside
airports would have prevented a terrorist attack that would have left thousands dead .... We
have to target the fanatics themselves. Baby formula doesn't kill people. Islamic fascists kill
people").

417. Glenn Frankel & Tamara Jones, In Britain, a Divide Over Racial Profiling,
WASHINGTON POST, July 27, 2005, at A01, available at http://www.washingtonpost.com/wp-
dynlcontentlarticle/2005/07/26/AR2005072601789.html; 'Shoot-to-kill'policy to remain, BBC
NEWS, July 25, 2005, http://news.bbc.co.uk/1/hi/uk/4713199.stm.

418. Lawrence P. Wilkins, Symposium: Then, Now and Into the Future: A Century of
Legal Conflict and Development, 28 IND. L. REv. 135, 137 (1995). Apparently some dispute
exits as to whether Mr. Twain actually uttered these words. Id. at n. 4. However, I am inclined

[Vol. 18:1



2008] COMPARATIVE ANALYSIS OF THE USE OF EMERGENCY POWERS

to believe that if he did not, then he would have been pleased to accept the free publicity.