1030 The Yale Law Journal [Vol. 113: 1029repressive laws, and on and on. Even if the next half-century sees only four or five attacks on the scale of September 11, this destructive cycle will prove devastating to civil liberties by 2050.It is tempting to respond to this grim prospect with an absolutistdefense of traditional freedom: No matter how large the event, no matter how great the ensuing panic, we must insist on the strict protection of allrights all the time. I respect this view but do not share it. No democraticgovernment can maintain popular support without acting effectively to calm panic and to prevent a second terrorist strike. If respect for civil libertiesrequires governmental paralysis, serious politicians will not hesitate beforesacrificing rights to the war against terrorism. They will only gain popular applause by brushing civil libertarian objections aside as quixotic.To avoid a repeated cycle of repression, defenders of freedom mustconsider a more hard-headed doctrine—one that allows short-termemergency measures but draws the line against permanent restrictions.Above all else, we must prevent politicians from exploiting momentary panic to impose long-lasting limitations on liberty. Designing aconstitutional regime for a limited state of emergency is a tricky business.Unless careful precautions are taken, emergency measures have a habit of continuing well beyond their time of necessity. Governments should not be permitted to run wild even during the emergency; many extreme measuresshould remain off limits. Nevertheless, the self-conscious design of an emergency regime may well be the best available defense against a panic-driven cycle of permanent destruction.This is a challenge confronting all liberal democracies, and we shouldnot allow American particularities to divert attention from the generalfeatures of our problem in institutional design. Nevertheless, the distinctivecharacter of the U.S. Constitution does create special problems, which Idiscuss separately when the need arises. My argument proceeds in twostages: The first is diagnostic, the second prescriptive. The exercise indiagnosis involves a critical survey of the conceptual resources provided bythe Western legal tradition: Are our basic concepts adequate for dealingwith the distinctive features of terrorist strikes? Part I suggests that wecannot deal with our problem adequately within the frameworks provided by the law of war or the law of crime. This negative conclusion clears the
147-87 (2d ed. 2002); S
IBERTIES IN THE
(2002); Harold Hongju Koh,
The Spirit of the Laws
, 43 H
L.J. 23(2002); Jules Lobel,
The War on Terrorism and Civil Liberties
, 63 U.
. 767 (2002);Patricia Mell,
Big Brother at the Door: Balancing National Security with Privacy Under the USA PATRIOT Act
, 80 D
. 375 (2002); and Kim Lane Scheppele,
Law in a Time of Emergency: Terrorism and States of Exception
, 6 U.
L. (forthcoming 2004). MyEssay does not aim to contribute to this burgeoning literature. Instead, I hope to consider howfurther cycles of repression may be avoided.