The use of emergency powers creates a legal quandary, because it may be that the necessary level of power results in the breach of constitutional rights of the citizen (Hardin, 2004). The proper use of emergency powers can result in the legitimate suspension of civil liberties. Nevertheless, Bush’s strategy towards the war on terror has illustrated that the use of the powers has to be proportional (Kassop, 2003). Another important factor that has been highlighted through the use of emergency powers, with respect to the war on terror, is that the suspension of human rights for persons outside of the US also must be proportional (Steyn, 2003). Thus, it is not enough for the state (and/or the President) to call a state of emergency, as a means to limit the fundamental rights of citizens and non-citizens.
A series of Supreme Court cases has illustrated that the state, whether in a state of emergency or not, to ensure that the basic human rights of the detainee are maintained (Hooper, 2013). In fact, the state must ensure that any allies or state that it turns potential terror suspects to maintain fundamental human rights (Boumediene v Bush 553 U.S. 723 (2008)). The implication is that certain fundamental rights cannot be breached, even if there is a state of emergency (Steyn, 2003).
The fact that a state, which is at war and declared an emergency, must provide basic protections for non-citizens makes sense due to the obligations under the Geneva Conventions on War. The purpose of these conventions is to provide the obligations of jus in bello (actions of a just war), in which certain fundamental rights cannot be derogated from. The Boumediene v Bush Case highlighted this fact. This case showed that it does not matter whether there is an act of war, terror or other form of belligerence; there are human rights protections that every individual has. These are legitimate detention and the prohibition of torture and inhumane and degrading treatment (Endicott, 2009; Hooper, 2013).
The Supreme Court’s decision in Boumediene v Bush reaffirms international human rights norms, in which habeas corpus claims against the president for breach of fundamental rights, could be taken by non-citizens (Hooper, 2013; Endicott, 2009). Another significant ruling in the Boumediene v Bush case was that the Military Commissions Act 2006 (US), which was enacted to reverse the successful habeas corpus decision in Rasul v Bush 542 U.S. 466 (2004), was unconstitutional. This means that the power of President is limited, even when an emergency has been called.
In Munaf v Geren 553 U.S. 674 (2008), a similar decision, allows American citizens who are being “held overseas by American forces operating subject to an American chain of command, even when those forces are acting as a part of multilateral coalition” to be held liable for breaches of fundamental human and constitutional rights. Consequently, US authorities must ensure that particular human rights (i.e. international jus cogens) are being maintained when the state has control or influence in overseas operations.
The limits on emergency powers, as the series of Supreme Court cases illustrate, is that there is no justification of arbitrary detention and/or torture of citizens and non-citizens in and outside of the US. The example of the Guantanamo black hole is a constant reminder of the misuse of emergency powers (Endicott, 2009). The implication is that there must be a proportional use of emergency powers; otherwise, there will be illegitimate governance. It is in such cases that the rule of law intervenes and limits the use of emergency powers (Greene, 2011). The rights that cannot be derogated from are the fundamental rights that prisoners of war receive under the Geneva Conventions. Thus, although a state of emergency can suspend the constitution, there are certain rights that will remain. This is because these rights are the cornerstone of civilized society, which is why they are jus cogens and supersedes the right of the state to derogate from these obligations.
- Boumediene v Bush 553 U.S. 723 (2008)
- Munaf v Geren 553 U.S. 674 (2008)
- Rasul v Bush 542 U.S. 466 (2004)
- Endicott, TAO. (2009). Habeas Corpus and Guantanamo Bay: A View from Abroad. Oxford Legal Studies Research Paper No 6/2007
- Greene, J, (2011). The Rule of Law as a Law of Standards Georgetown Law Journal Vol. 99 pp. 1289
- Hardin, R. (2004). Civil Liberties in the Era of Mass Terrorism. Journal of Ethics Vol 8, 77-95
- Hooper, HJ. (2013) “Shining the Light on the Darkness? Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence. Public Law pp. 213
- Kassop, N. (2003). The War Power and Its Limits. Presidential Studies Quarterly. Vol 33, iss. 3, 509-529
- Steyn, J. (2003). Guantanamo Bay: The Legal Black Hole. Twenty-Seventh FA Mann Lecture, November 25, 2003