Law in Times of Crisis Part 4 pdf

ethic of political responsibility 125 The Executive in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for [the people] unauthorized what we know they would have done for themselves had they been in a situation to act. 58 Similarly, following an attack (during a congressional recess) by a British frigate, the Leopard, on an American ship, the Chesapeake, President Jefferson spent unappropriated funds for munitions to strengthen cer- tain strongholds in the face of a possible war with England. He later asked Congress for a retroactive approval of this expenditure, explaining: To have awaited a previous and special sanction by law would have lost occasions which might not be retrieved I trust that the Legislature, feeling the same anxiety for the safety of our country, so materially advanced by this precaution, will approve, when done, what they would have seen so important to be done if then assembled. 59 In the congressional debates that ensued, a general agreement with Jefferson’s position prevailed across political parties. 60 Thus, suggested Jefferson, ‘‘There are extreme cases where the laws become inadequate even to their own preservation, and where the uni- versal recourse is a dictator, or martial law,’’ 61 and that ‘‘on great occa- sions every good officer must be ready to risk himself in going beyond the strict lines of law, when the public preservation requires it; his mo- tives will be a justification.’’ 62 Jefferson sought to limit the incidents in which such illegal actions might be taken by claiming that they would be justified if, and only if, three conditions were met: (1) The occurrence of certain objective circumstances that amount to ‘‘extreme cases’’ and ‘‘great occasions.’’ That such ‘‘great occasions’’ were to be rare is demonstrated by President Madison’s refusal to ratify the controversial actions of General Jackson in New Orleans in early 1815. Jackson was fined $1,000 for contempt of court for 58 Letter from Thomas Jefferson to John Breckenridge (Aug. 12, 1803), quoted in Daniel P. Franklin, Extraordinary Measures: The Exercise of Prerogative Powers in the United States (Pittsburgh: University of Pittsburgh Press, 1991), p. 45 (emphasis added). 59 Wilmerding, ‘‘The President and the Law,’’ 323 24. 60 Ibid., pp. 327 28; see also Schlesinger, The Imperial Presidency, p. 24. 61 Letter from Thomas Jefferson to James Brown (Oct. 27, 1808), at http://memory.loc.gov/ammem/mtjhtml/mtjser1.html (last visited on August 8, 2005). 62 Letter from Thomas Jefferson to William C.C. Claiborne, Governor of Orleans Territory (Feb. 3, 1807), at http://memory.loc.gov/ammem/mtjhtml/mtjser1.html (last visited on August 8, 2005). 126 models of extra-legality ignoring a writ of habeas corpus issued by Judge Dominick Hall and for imprisoning the judge himself. Jackson paid the fine out of his own pocket. It took Congress twenty-nine years before it repaid the fine (with interest) to Jackson. As Justice Field of the United States Supreme Court wrote: I confess I have always been taught to believe that Judge Hall was right in imposing the fine, and that General Jackson earned the brightest page in his history by paying it, and gracefully submitting to the judi- cial power. Such I believe is the judgment of history and of thoughtful judicial inquirers; though a grateful country very properly refunded to her favorite general the sum he had paid for a necessary but unauthorized exercise of military power. 63 (2) Actions by public officials that advance the good of the country. (3) An ex post approval of these actions by the American people (directly or through their representatives in Congress). Such measures were taken for the sake of preserving the life, liberty, and property of the people, and the people ought to determine whether the actions should be ratified. Similarly, discussing the charge that the Philadelphia Convention exceeded its powers, James Madison rejected the allegation, but added that even if they had exceeded their powers, they were not only warranted, but required as the confidential servants of their country, by the circum- stances in which they were placed to exercise the liberty which they assumed; and if they had violated both their powers and their obli- gations in proposing a Constitution, this ought nevertheless to be em- braced, if it be calculated to accomplish the views and happiness of the people of America. 64 For this final and most crucial condition the need for ex post approval to apply there ought to be open and public acknowledgment of the unlawful nature of such actions and of the necessity that called for committing them in the first place. 63 Dow v. Johnson, 100 US 158 (1879), pp. 194 95 (Justice Field) (emphasis added); Sofaer, War, Foreign Affairs, pp. 333 36; George M. Dennison, ‘‘Martial Law: The Development of a Theory of Emergency Powers, 1776 1861’’ (1974) 18 American Journal of Legal History 52 at 61 65; Jonathan Lurie, ‘‘Andrew Jackson, Martial Law, Civilian Control of the Military, and American Politics: An Intriguing Amalgam’’ (1989) 126 Military Law Review 133; Abraham D. Sofaer, ‘‘Emergency Power and the Hero of New Orleans’’ (1981) 2 Cardozo Law Review 233. See also Wilmerding, ‘‘The President and the Law,’’ 326 27 (discussing a heated debate in 1807 in the House of Representatives and noting that all parties were united in agreement that certain circumstances may arise in which an illegal suspension of the writ of habeas corpus would be proper). 64 Clinton Rossiter (ed.), The Federalist Papers (New York: New American Library, 1961), No. 40, pp. 254 55 (James Madison). ethic of political responsibility 127 Whereas Locke puts his trust in an implicit, general, ex ante public acquiescence in the exercise of an executive power to act outside the law, Jefferson’s approach insists that an explicit, particular, ex post legislative ratification of the same must be awarded. Extra-legal actions cannot be justified merely by reference to the motives of the actors, laudable as these may be. Rather, a separate and independent ex post ratification process must take place in order for the extra-legal action to be justified or excused. In the absence of ex post ratification the actor may be subject to legal sanctions for violating the dictates of the law, albeit for what are arguably the noblest of reasons. Public officials who act in violation of the law in order to fend off great threats assume the risk of being found criminally and civilly liable for their illegal actions. They must openly and boldly disclose the nature of their actions and the reasons for taking them and ‘‘throw [themselves] on the justice of [their] country.’’ 65 This is the ethic of responsibility at its zenith. The circumstances surrounding Little v. Barreme 66 illustrate the dis- tinctions between action and ratification. During a period of hostilities between the United States and France, a merchant vessel, the Flying Fish, sailing under the Danish flag, was captured by two American vessels on suspicion of violating an act of Congress prohibiting commerce with France. Under the relevant provision, the president had been authorized to instruct naval commanders to seize any vessel on the high seas bound or sailing to any French port. The order issued by President Adams in- structed the commanders to seize vessels bound to or sailing from France. When captured, the Flying Fish was sailing from France to Denmark, a neutral state in the conflict. The United States Supreme Court affirmed the circuit court’s decision to grant damages against Captain George Little, the commanding officer of the USS Boston, for the seizure and detention of the Danish vessel. Speaking for a unanimous court, Chief Justice Marshall held that the president could not give lawful instruc- tions that ran contrary to express congressional legislation. The com- mander’s actions could not be legalized by such a presidential order. The instructions of the executive order could not ‘‘change the nature of the transaction, nor legalize an act which, without those instructions, would have been a plain trespass.’’ 67 The court did not doubt Captain 65 Wilmerding, ‘‘The President and the Law,’’ 322 24, 329; Lobel, ‘‘Decline of Liberalism,’’ 1396. 66 6 US (2 Cranch) 170 (1804). 67 Ibid., p. 178. See also United States v. Smith, 27 F. Cas. 1192 at 1230 (C.C.D.N.Y. 1806) (No. 16,342). 128 models of extra-legality Little’s motives. Yet, despite the fact that his actions were undertaken for the good of the country (as not only he but also the president saw it), the Supreme Court held such actions illegal and imposed penalties on him. This judicial decision was not, however, the end of the story. After the Supreme Court had ruled on the matter and after damages had been recovered from Captain Little, Congress reimbursed him for his damages, interest, and charges, with money from the United States Treasury. 68 The action taken by Captain Little was ruled illegal, but the ‘‘justice of his country’’ dictated that he should not bear the brunt for that action. While recognizing that Captain Little’s actions were the right thing to do in the circumstances, the Supreme Court found them to be illegal. It was only with the ex post ratification of Little’s actions by Congress that the gap between illegality and ‘‘the right thing to do’’ was, for practical purposes, closed. This was by no means a foregone conclusion. Captain Little took a double risk: first, that his actions would, as they indeed were, be found illegal and that he might need to make reparations, both civil and penal, for such actions, and second, that ex post ratification would not materialize. The potential absence of such ratification would have meant that no reimbursement would have been made, and, perhaps more significantly, that the moral and public vindication of Captain Little would not have been forthcoming. Such substantial risks are not lightly taken and their existence militates against acting in a way that falls outside the legal order, although it does not completely bar the possibility of such actions taking place. Jefferson’s approach to emergency powers may be compared with the constitutional vision presented by President Lincoln during the Civil War. As noted in chapter 1 above, one possible reading of Lincoln’s as- sertions of special powers during the war sees the president as having appealed to special emergency powers that are inherent in the constitu- tional framework and that are available to the executive in times of great peril and risk. There are, however, other possible readings of Lincoln’s claims to such powers that bring his actions closer to the Extra-Legal Measures model. Thus, when explaining to Congress the extraordinary measures that he had taken prior to July 4, 1861, Lincoln said that those measures, ‘‘whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them. It is believed that nothing 68 Wilmerding, ‘‘The President and the Law,’’ 324, n. 6. ethic of political responsibility 129 has been done beyond the constitutional competency of Congress.’’ 69 On other occasions, however (as noted in chapter 1), Lincoln seems to consider the necessity and exigency of the times to have made con- stitutional that which in other circumstances might not have been so, without need for any further form of ex post ratification. Since Lincoln’s presidency, arguments about emergency powers have invariably revolved around the claim that the president enjoys a wide range of constitu- tionally inherent powers, including emergency powers, and therefore acts legally and constitutionally rather than outside the constitutional and legal framework. For presidents, the possibility of arguing that their actions are constitutional is obviously desirable. For the public, the no- tion that a valiant public official out to save the nation may be forced to employ illegal means and ‘‘throw himself on the electorate’s judg- ment’’ is difficult to accept. Frederick Pollock, commenting on the view that the necessity that leads to the use of martial law may not make, of its own accord, measures taken to protect the nation legal even if otherwise such measures would have been illegal, suggested that such a theory, [I]mputes gratuitous folly to the common law, which cannot be so perverse as to require a man in an office of trust to choose between breaking the law and being an incompetent officer and a bad citizen It seems, therefore, that the acts which every courageous and prudent magistrate would certainly do in the circumstances supposed are not a kind of splendid offence, but are ‘‘justifiable and lawful for the maintenance of the Commonwealth.’’ 70 The obvious discomfort that Chief Justice Marshall felt in deciding against Captain Little reflected similar sentiments: ‘‘I confess the first bias of my mind was very strong in favor of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages.’’ 71 Be that as it may, the subsequent ratification and affirmation of Lincoln’s emergency actions by Congress 72 and the 69 Abraham Lincoln, ‘‘Message to Congress in Special Session (July 4, 1861),’’ in Basler, The Collected Works of Abraham Lincoln, vol. IV, pp. 421, 429 (emphasis added). See also Farber, Lincoln’s Constitution, p. 194. 70 Frederick Pollock, ‘‘What is Martial Law?’’ (1902) 70 Law Quarterly Review 152 at 156. 71 Little v. Barreme, 6 US (2 Cranch) 170 at 179 (1804). 72 On August 6, 1861, Congress ratified all of the president’s actions related to the armed forces and the militia. In 1863, Congress passed a general immunity legislation: An Act Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases, ch. 81, paras. 4, 7, 12 Stat. 755, 756 58 (1863). 130 models of extra-legality Supreme Court 73 made the question of the legality of those actions prac- tically a moot one. 74 Dicey’s ‘‘spirit of legality’’ Introduction to the Study of the Law of the Constitution reflects Dicey’s sus- picion of executive discretion, treating it as leading to use of arbitrary powers. Dicey reminds us that ‘‘the supremacy of the law of the land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in a spirit of legality.’’ 75 At the same time, he ac- knowledges that ‘‘The rigidity of the law constantly hampers (and some- times with great injury to the public) the action of the executive.’’ 76 Specifically, he concedes that ‘‘Under the complex conditions of modern life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers, without occa- sional use of arbitrary authority.’’ 77 How are we supposed to meet the challenge of the need to authorize occasional use of arbitrary (i.e., dis- cretionary) authority while maintaining limitations and checks on the use of such power? Dicey offers us two complementary solutions. First is for the executive to obtain from parliament ‘‘the discretionary authority which is denied to the Crown by the law of the land,’’ i.e., by recourse to ‘‘exceptional legislation.’’ 78 While exigencies call for the exercise by the executive of discretionary power such power must be governed by statute. The executive must obtain ‘‘aid from Parliament’’ in fashioning the discretionary powers with which to meet, and successfully repel, crises and emergencies. 79 The fact that executive emergency powers are derived from, and based on, statutes reaffirms parliamentary supremacy even in times of grave threats to the nation, while at the same time, it acts to limit and confine the scope of such powers. They may be discre- tionary. They may be extraordinary. But they are never unlimited and are always open to review by the courts. 80 What form should ‘‘aid from Parliament’’ take? The obvious response suggested by Dicey is the passage of ‘‘exceptional legislation’’ that would 73 Mitchell v. Clark, 110 US 633 (1884); The Prize Cases, 67 US (2 Black) 635, 668 70 (1862). 74 But see Sanford Levinson, ‘‘The David C. Baum Memorial Lecture: Was the Emancipation Proclamation Constitutional? Do We/Should We Care What the Answer Is?’’ (2001) University of Illinois Law Review 1135. 75 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Indianapolis, IN: Liberty Classics, 1982), p. 273. As noted above, we refer to the 8th edition of Dicey’s work since that was the last edition that he himself prepared. 76 Ibid., p. 271. 77 Ibid. 78 Ibid. 79 Ibid., p. 272. 80 Ibid., p. 273. ethic of political responsibility 131 enable the executive to exercise discretionary powers. Such exceptional legislation, falling squarely within the ambit of the model of legislative accommodation which we discussed in chapter 1, will be enacted ex ante, i.e., prior to the exercise of the relevant powers by the executive. It may be introduced either on an ad hoc (to meet a concrete exigency) or on a permanent basis. Once put in place it serves as the legal back- ground against which executive emergency powers will be exercised, and against which their legality and eventual legitimacy will be measured and evaluated. Yet, Dicey also recognizes that ex ante special legislation does not ‘‘exhaust . . . the instances in which the rigidity of the law necessitates the intervention of Parliament.’’ Rather, ‘‘There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken. The course which the government must then take is clear. The Ministry must break the law and trust for protection to an Act of Indemnity.’’ 81 By enacting such an Act of Indemnity parliament ‘‘legalises illegality’’ and asserts its sovereignty and supremacy. 82 Here, again, the govern- ment must obtain aid from parliament. But whereas the exceptional legislation discussed above calls for such legislative aid to be accorded ex ante, legislative Acts of Indemnity furnish the government with an after the fact, retrospective, ex post aid. Under both special legislation and ex post Act of Indemnity, govern- ment must obtain aid from parliament. For Dicey, claims of inherent executive powers to deal with emergencies are inconceivable as they are certain to undermine parliamentary sovereignty and supremacy by leading to practically unfettered discretion and authority in the hands of the government. Dicey also rejects what he calls ‘‘the doctrine of po- litical expediency,’’ namely the view that ‘‘during an invasion, a general, a mayor, a magistrate, or indeed any loyal citizen, is legally justified in doing any act, even though prima facie a tort or a crime, as to which he can prove to the satisfaction of a jury that he did it for the public ser- vice in good faith, and for reasonable and probable cause.’’ 83 Necessity does not, in and of itself, make legal that which in other circumstances would have been illegal. An Act of Indemnity, Dicey suggests, ‘‘legalises illegality.’’ Acts of Indemnity may do one of two things: they may shelter the acting public official from civil or criminal responsibility for her 81 Ibid., p. 272 (emphasis added). 82 Ibid., pp. 10 11, 142; A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law (13th edn, New York: Longman, 2003), p. 56. 83 Dicey, Law of the Constitution, p. 412 (emphasis added). 132 models of extra-legality violations of the law while holding that her actions were, and remain, illegal. Alternatively they may seek to exculpate the actor from any legal responsibility for her actions by making such actions, retrospectively, lawful. Dicey takes the latter approach: ‘‘Acts of Indemnity . . . are ret- rospective statutes which free persons who have broken the law from responsibility for its breach, and thus make lawful acts which when they were committed were unlawful.’’ 84 An Act of Indemnity is, in this sense, constitutive for it transforms prior illegality into legality. Diecy rejects Frederick Pollock’s suggestion that an Act of Indemnity is merely ‘‘a measure of prudence and grace. Its office is not to justify unlawful acts ex post facto, but to quiet doubts, to provide compensation for innocent persons in respect of damage inevitably caused by justifiable acts which would not have supported a legal claim.’’ 85 calling it a ‘‘very inadequate description of an Act of Indemnity.’’ 86 This fits with Dicey’s overall argu- ment for the supremacy of law in general, and with his position about martial law (and the limitations on the exercise of governmental power under it) in particular, since an ‘‘Act of Indemnity, again, though it is the legalisation of illegality, is also . . . itself a law . . . It is no doubt an exercise of arbitrary sovereign power; but where the legal sovereign is a Parliamentary assembly, even acts of state assume the form of regular legislation.’’ 87 Thus, by ‘‘making lawful acts which when they were com- mitted were unlawful,’’ the Act of Indemnity ensures that all actions by public officials are done under a legislative framework and do not exist outside the law. However, it is not the mere fact of necessity that legal- izes illegality. Rather, it is a subsequent legislative act of ratification an ex post approval by the people’s representatives in parliament that may do so. Until and unless such an Act of Indemnity is passed the fact of illegality remains. Searching for ‘‘moral politicians’’ In his essay ‘‘Politics as a vocation,’’ Max Weber promotes what he calls the ‘‘ethic of responsibility’’ over the ‘‘ethic of ultimate ends.’’ 88 Political leaders those who choose politics as a vocation must stand ready to violate even fundamental principles and values if such violation is 84 Ibid., p. 142 (emphasis added). See also ibid, p. 10. 85 Pollock, ‘‘Martial Law,” 157. 86 Dicey, Law of the Constitution,p.414. 87 Ibid., p. 145. 88 Max Weber, ‘‘Politics as a Vocation’’ in H.H. Gerth and C. Wright Mills (eds. and trans.), From Max Weber: Essays in Sociology (New York: Oxford University Press, 1946), p. 77 at 120 21. ethic of political responsibility 133 genuinely for the good of the community at large: ‘‘[I]t is not true that good can follow only from good and evil only from evil, but that often the opposite is true. Anyone who fails to see this is, indeed, a political in- fant.’’ 89 Thus, ‘‘Whoever wants to engage in politics at all, and especially in politics as a vocation . . . lets himself in for the diabolic forces lurking in all violence.’’ 90 However, even if their actions have been genuinely for the public good, political leaders may still be required to pay the price of acting in violation of such principles and values. It is not enough to argue, as Locke suggests, that the public permitted such actions ex ante as part of its implicit acquiescence in the application of the preroga- tive power in appropriate circumstances. More is needed if the official is not to be held liable for her actions and to be relieved from making reparations for her wrongful acts. Even when she breaks a rule for good reasons, she may still have a duty to make reparations. 91 Michael Walzer takes a similar position with respect to what is known as ‘‘the problem of the dirty hands,’’ namely the notion that no one can hold political power without getting her hands dirty at some point. 92 Walzer points to a distinction between doing the right thing in utili- tarian terms and the moral value of such actions: ‘‘[A] particular act of government . . . may be exactly the right thing to do in utilitarian terms and yet leave the man who does it guilty of a moral wrong.” 93 Thus, there is no need to choose between upholding an important moral principle and avoiding national catastrophe. Both continue to be applicable at the same time. Government ought to avoid disasters and to overcome them as soon as possible once they occur. This is the right thing to do. But ‘‘right’’ in this context must not be confused with moral rightness. We must not attach moral praise to such actions if they contravene moral principles. They are morally wrong but practically necessary. In this light we can understand Walzer’s question of how one recognizes a ‘‘moral 89 Ibid., p. 123. 90 Ibid., p. 125. 91 Robert Nozick, ‘‘Moral Complications and Moral Structures’’ (1968) 13 Natural Law Forum 1at35n.46. 92 Michael Walzer, ‘‘Political Action: The Problem of Dirty Hands’’ in Marshall Cohen, Thomas Nagel, and Thomas Scanlon (eds.), War and Moral Responsibility (Princeton: Princeton University Press, 1974), p. 62; Thomas Nagel, Mortal Questions (New York: Cambridge University Press, 1979), p. 75; Bernard Williams, ‘‘Politics and Moral Character’’ in Bernard Williams, Moral Luck: Philosophical Papers, 1973 1980 (New York: Cambridge University Press, 1981), p. 54; Jean Bethke Elshtain, ‘‘Reflections on the Problem of ‘Dirty Hands’’’ in Sanford Levinson (ed.), Torture: A Collection (New York: Oxford University Press, 2004), p. 77; Gross, ‘‘Chaos and Rules,’’ 1105. 93 Walzer, ‘‘Dirty Hands,’’ 63. 134 models of extra-legality politician’’ and his answer: ‘‘by his dirty hands.’’ 94 A moral person who is not a political leader will (and can) refuse to act in an immoral way. She keeps her hands clean. A politician who is immoral will merely pretend that her hands were clean, for example, by denying any wrongdoing. Alternatively she may argue that whatever is the pragmatic right thing to do becomes, for that reason only, also moral and legitimate. A moral politician will do the right (pragmatic) thing to save the nation, while openly acknowledging and recognizing that such actions are (morally) wrong that is, openly admitting that her hands are indeed dirty. The question then becomes not whether a political leader will act in this way in the face of a moral principle to the contrary (for it is clear that she will act), but rather what moral judgment should be attached to such action. Under both Weber’s ethic of responsibility and Walzer’s moral politi- cian paradigms, saying that extra-legal action was appropriate under the circumstances does not, in and of itself, absolve the politician from her moral culpability. The Extra-Legal Measures model takes this a step further by exploring the circumstances in which politicians who have done the right thing may actually be absolved from legal liability for their extra-legal actions. For that to happen it is not enough under the model that there be a general agreement that the actions taken were the right thing to do at the relevant time. Something more is needed. That something more is, it is argued, the public’s explicit, particular, and ex post ratification. Disobedience and ratification Official disobedience Public officials, like everybody else, ought to obey the law, even when they disagree with specific legal commands. However, there may be ex- treme exigencies where officials may regard strict obedience to legal authority as irrational or immoral. 95 Those who insist on an unqual- ified rule of obedience to the law (at least where public officials are concerned), no matter what the circumstances may be, would resolve the official’s dilemma in such cases by finding that her obligation to obey legal authority is undiminished by the exigency. Others may 94 Ibid., p. 70. 95 Frederick Schauer, ‘‘The Questions of Authority’’ (1992) 81 Georgetown Law Journal 95 at 110 15. [...]... possibility of government of cials acting extra-legally to protect the nation and its citizens Thus, the model enables judges to protect individual rights without having to fear that by doing so they compromise 182 183 1 84 185 Korematsu v United States, 323 US 2 14 at 244 (1 944 ) (Jackson, J., dissenting) Ibid., pp 244 46 (Jackson, J., dissenting) Schenck v United States, 249 US 47 at 52 (1919) 395 US 44 4 at 44 8... matrons, and the flight of virgins and of boys and the insults of the vestal virgins. 141 139 140 141 Dicey, Law of the Constitution, p 145 ; Pollock, ‘‘Martial Law? ’’ 153 54 Ernest George Hardy, The Catilinarian Conspiracy in its Context: A Re-Study of the Evidence (Oxford: Basil Blackwell, 19 24) ; Sallust, The Jugurthine War and the Conspiracy of Catiline, trans S.A Handford (Baltimore: Penguin, 1963); Max Cary... trial, blocking any future possibility of criminal proceedings being brought against them.1 04 Governmental indemnification of state agents who are found liable for damages in civil proceedings may also operate as ex post 102 103 1 04 Schauer, ‘‘The Questions of Authority,’’ 1 14 See, e.g., H.C 5100/ 94, Pub Comm against Torture in Israel v The State of Israel, 53 (4) P.D 817, at para 40 (Barak, P.) H.C 42 8/86,... the nation By refraining from introducing changes to the existing preemergency legal system, either by way of direct modification or by way of interpretation, the Extra-Legal Measures model strives to avoid the creation of legal precedents that would be integrated into the normal system of laws and permeate into times of peace and normalcy As Lucius Wilmerding explains: A breach of the law, even a necessary... dissenting)  144 models of extra-legalit y If government may deviate from the principle of the rule of law in some cases, would it not be able to do so in others? And why should the public hold the rule of law in any higher regard than its government? Once the rule of law ceases to be thought of as an absolute immovable rule, further incursions are likely to take place into its domain.129 Violations of. .. an extreme crisis and the use of extra-legal measures to fight off that crisis Emergency legislation and expansionist interpretation of existing laws can be, in due course, uprooted and replaced by norms approximating the pre-emergency legal system But once a habit of lawlessness and disobedience has developed, the point of no return may have been crossed The fear of establishing a habit of lawlessness... public of cials Acts of Indemnity offer another route to ex post ratification As noted above, A.V Dicey suggests that, ‘‘There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken The course which the government must then take is clear The Ministry must break the law and trust for protection to an Act of Indemnity.’’108 By enacting such Acts of Indemnity,... 04 (arguing that there is ‘‘no truth in the popular allegations that Harris and Bomber Command were denied any personal or of cial recognition’’) Paul H Robinson, ‘‘Should the Victims’ Rights Movement have In uence over Criminal Law Formulation and Adjudication?’’ (2002) 33 McGeorge Law Review 749 at 749 ; David Cole, ‘‘Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis ’... matter of principle or in the circumstances of the particular case The greater the moral and legal interests and values infringed upon, the less certain the actor can be of securing ratification Uncertainty is also important because it reduces the potential risk of underdeterrence that is involved in the possibility of ex post ratification Underdeterrence may be a significant concern if public of cials... knowledge that acting in a certain way means acting unlawfully is thus likely, in and of itself, to have some restraining effect on government agents But, of course, such uneasiness is a matter of subjective feeling and individual conscience and only the agent decides how troubled his conscience will be and how uneasy he would feel about acting extra-legally When we add the specter of having to give reasons . Secu- rity Service, including the head of the service, prior to trial, blocking any future possibility of criminal proceedings being brought against them. 1 04 Governmental indemnification of state agents. Marshall felt in deciding against Captain Little reflected similar sentiments: ‘‘I confess the first bias of my mind was very strong in favor of the opinion that though the instructions of the executive. ‘‘Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis ’ (2003) 101 Michigan Law Review 2565 at 2577. 140 models of extra-legality By requiring a process of ex