Finding Constitutional and International Norms in Anti-Terrorism Practices

Abstract:     
In the immediate wake of the September 11 attacks, there was well-founded anxiety that the enormity of the episode and the war talk that followed would result in the significant curtailment of civil liberties, and particularly the rights of aliens. The historical precedents pointed in that direction, and some proposals would have constituted a serious setback to individual rights. But the more extreme fears have not been realized. Although elements of the government's response to 9/11 have been rights-restrictive, the overall resiliency of rights protections has perhaps been more remarkable.

This essay explores three possible explanations for why the early predictions of rights reversals have not come about. First, it may be that however dramatic the attacks, they did not in fact constitute so serious a threat as to warrant - as a matter of policy - the severe curtailment of rights. A second explanation highlights a largely extrajudicial dynamic in which more rights-invasive anti-terrorism proposals have been defeated as inconsistent with constitutional norms. Finally, the international community and international law appear to have played a significant role in restraining the government from a more serious assault on civil liberties. Geopolitical dominance and the unilateralist bluster of the present Administration notwithstanding, U.S. practice is being disciplined by international rights norms.

Number of Pages in PDF File: 24

working papers series