Assume the worst: the attack on Charlie Hebdo is the opening gun in an escalating terrorist campaign. In the coming days, another band of extremists succeeds at a second-strike, escalating the prevailing anxiety to new heights. Confronting the emphatic demand that the President "do something" to regain control of the situation, Hollande considers his next step. Here is where the French Constitution comes in. It authorizes the President to exercise extraordinary powers whenever the Republic's institutions are under "grave and immediate threat." Once he invokes this authority, he can, for example, order sweeping preventive detention measures that would not be tolerated under ordinary conditions.
With one proviso. He can only exercise his powers for a maximum of 60 days. Beyond that point, he must convince the country's highest tribunal, the Constitutional Council, that the threat continues to be "imminent." If the Council doesn't agree, the emergency comes to an end. Even if it goes along, the Council is under a continuing obligation to rein in the president "at any moment" if it determines that the risk has returned to more normal levels.
This set-up permits France to make a sharp distinction between the short-term and long-term dangers that follow a successful terrorist attack. In the short term, drastic measures -- short of torture -- may well be reasonable to disrupt terrorist networks that have successfully eluded the security services. Without such steps, there is too great a risk of escalating destruction, and massive public reaction against outside groups.
Nevertheless, these decisive short-term actions pose long-term problems. Emergency measures will develop a momentum of their own, and entrench themselves into "normal" practice. Even after the immediate danger has passed, security services are in the business of detecting threats, and will defend draconic practices as essential.
Worse yet, it will prove impossible to prevent all future attacks. With seven billion people in the world, there will always be tens of millions of haters. When the "new normal" fails to prevent some new group from blasting its way into tragedy, the public will demand even harsher measures. Over the decades, the "new normal" will become increasingly repressive.
Recognizing this grim prospect, the French insist that the Constitutional Council order a return to the "old normal" once the immediate danger has passed. It is too soon to say whether the Council will serve as an effective constraint. Its role was only established by a 2008 amendment, and fortunately, the new system has not yet been tested in real life.
In any event, its methods of institutional control makes sense only within its distinctive institutional framework. For a host of reasons, our Supreme Court cannot and will not unilaterally intervene to check the President in the French manner.
Nevertheless, we can adapt the basic insight to fit our own constitutional logic. The French are right to insist that there is a "third way" between an endless war on terrorists and a rigid adherence to normal legal standards when confronting a wave of terrorist attacks. Congress should pass a statute under which it, not the Court, decides whether conditions remain sufficiently grave to justify the continuation of extraordinary measures.
Consider this framework. In response to a serious terrorist attack, the President may declare an emergency for 60 days. But his special powers lapse unless a majority of both houses approve another 60-day extension. When the second period begins to run out, Congress can allow another extension, but this time only by a 60 percent majority; and the next time, by 70 percent; all further extensions require an 80 percent vote. This "super-majoritarian escalator" will return the system to normal within a reasonable time -- unless the tragedy assumes epic proportions.
This and other "third way" approaches to terrorist emergencies deserve serious consideration. Congress is up to the task. The standard partisan divisions need not prevent the construction of a solid system of checks-and-balances for future emergencies. There are strong civil libertarians and national security advocates in both parties. The challenge is to reach common ground.
Many other countries have, like the French, enacted new emergency regimes in the expectation that terrorism will generate grave, but intermittent, crises throughout the twenty-first century.
It is past time for us to do the same.
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Bruce Ackerman, a professor of law at Yale, is currently a Fellow at the American Academy in Berlin. He elaborates his proposal for a "super-majoritarian escalator" in his book, Before the Next Attack.