The Rule of Law in the Fight against Terrorism: Less Executive Power, More Security

In the aftermath of 9/11 terrorist attacks, it has become increasingly difficult to argue that the executive branch of the United States be bounded by constitutional rules that might hamper its capacity to ensure collective security. Given the potentially horrific costs of failing to stop another large-scale terrorist attack, the citizens themselves viewed a rigid adherence to legal limits as problematic and were willing to grant the executive more powers at the expense of fundamental rights and liberties. But does increasing the executive’s counterterrorism powers make us safer from terrorism? Our article, “The Rule of Law Against Terrorism“, shows that legal limits on executive counterterrorism powers can be beneficial on security grounds alone and therefore strengthening institutions that uphold the rule of law in the fight against terrorism can be an effective way to achieve security from terrorism.

Security crises pose fundamental challenges to the constitutional structure of liberal governments. Unexpected security dangers such as catastrophic terrorist attacks serve as a reminder that collective security is a precondition for the proper functioning of a liberal order, raising the following question: What is the role of legal limits on executive power, if any, when citizens demand more security and allowing executive officials legal flexibility of action appears necessary to achieve it?

This question becomes most compelling when governments seek to prevent a security crisis rather than simply react to it. Few if any would argue that executive officials should wait until the actual realization of catastrophic terrorist attacks and not take preventive actions to ward off such security threats. To prevent crises of such proportions, the executive must have the means to act proactively. Crisis prevention seemingly requires permanent executive discretionary powers, and thus represents a constant challenge to the ideal of limited government enshrined in the U.S. Constitution and the Federalist Papers.

The tension between the institutional structure of liberal government and successful crisis prevention came to the fore in the aftermath of the 9/11 terrorist attacks. To enhance their governments’ capacities to prevent terrorist attacks, the discretionary powers of the executive were promptly augmented in the United States and other liberal societies. In turn, many of the executive’s counterterrorism activities have infringed upon the rights and liberties of aliens and non-citizens, in particular. In the United States, for example, the executive undertook scores of repressive counterterrorism policies, ranging from ethnic profiling to increased restrictions on immigration, to increased surveillance of certain ethnic and religious communities and even torture of aliens suspected of terrorist activities.

The rationale for such repressive policies is that executive discretion is essential to respond effectively to terrorist activities, and thus the executive should be afforded legal flexibility to thwart security dangers. Without necessarily denying that the ethnic and religious communities in which potential terrorists have roots are important in fighting terrorism, the presumption is that executive discretion increases security from terrorism because there are political controls on how executive counterterrorism powers are used. If repressive policies would be harmful for terrorism prevention, so the argument goes, the executive will restrain itself from undertaking such suboptimal counterterrorism policies because citizens can punish ineffective usage of executive power at election times.

The logic behind the security rationale for executive discretion appears simple and intuitive. If the executive cares about security from terrorism and also about being in office, and if the citizens are more likely to reelect the executive if it is successful in preventing terrorism, then allowing executive officials legal flexibility of action should translate into more security from terrorism.

Our research questions this security rationale on its own terms. To this end, we developed a game-theoretic model to show that that even if citizens are less likely to reelect the government when failing to prevent terrorist attacks, that is, even if electoral controls on how executive counterterrorism powers are used are effective, security from terrorism can actually decrease if the executive has legal flexibility to choose any policy it finds optimal.  In contrast, security from terrorism always increases if there are explicit legal limits on the executive’s counterterrorism actions. We also show that the executive achieves the objective of terrorism prevention more effectively when there are some limitations on its counterterrorism powers rather than when executive officials have legal flexibility to devise security policy.

At the minimum, the analysis suggests that the burden of empirical proof should be on executive officials who must show that discretionary powers achieve the intended security benefits and, perhaps, whether such benefits can be achieved without setting aside fundamental liberal-democratic principles. Moreover, our analysis indicates that even when citizens want a readjustment in the balance between security and liberty, it is not necessarily security-beneficial if the executive itself decides on the scope of government power.

Our research underscores a novel rationale for legal limits and checks on executive powers. The traditional Madisonian argument for such institutions is that they stem abuses of governmental power and thus help preserve citizens’ rights and liberties. Security crises challenge this very rationale. Times of duress are associated with unfettered governmental powers; ordinary, regular situations with separation of powers and checks and balances institutions. Without disputing the importance of constitutional limits and institutional checks within the tradition of a liberal distrust of government, the analysis here underscores another, perhaps less intuitive virtue: such institutional arrangements can increase a government’s capacity to prevent crises. Thus they might be a necessary component of structuring the government if the social objective is terrorism prevention.

Our paper also contributes to an empirical literature on terrorism and political violence. Scholars have noted that liberal democracies often resort to repressive policies and focus their coercive efforts on political, ethnic or religious communities associated with a particular security threat. Scholars have also empirically shown that repressive tactics at odds with fundamental liberal-democratic principles can negatively affect security from terrorism, empirical findings that raise the following puzzle: why would a rational government intending to achieve security from terrorism nevertheless engage in repressive tactics that undermine it? Our model shows that it can be an equilibrium behavior for the executive to undertake repressive policies that harm security from terrorism, a behavior induced by electoral incentives to provide security from terrorism.

About the Authors: Tiberiu Dragu is Assistant Professor, Wilf Family Department of Politics, New York University, and Mattias Polborn is Professor, Department of Economics and Department of Political Science, University of Illinois. Their research “The Rule of Law Against Terrorism” appeared in the April 2014 issue of the American Journal of Political Science.

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The Editor of the AJPS is at Michigan State University and the Editorial Office is supported by
the Michigan State University Department of Political Science and the School of Social Sciences.

  Michigan State University 
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