'Use It and Lose It': An Exploration of Unused Counterterrorism Laws and Implications for Future Counterterrorism Policies

Abstract

This Article explores why the Executive Branch has declined to use three counterterrorism laws - the Alien Terrorist Removal Court, Section 412 of the Patriot Act, and the lone-wolf amendment to the Foreign Intelligence Surveillance Act - and suggests that the reason may be fear that the laws are unconstitutional and, paradoxically, that in some cases they provide too many rights to suspected alien terrorists. The Article also offers three insights from the non-use of counterterrorism laws: (1) that Congress may be passing political responses instead of needed counterterrorism protection; (2) that the judicial branch is using these laws to narrow the scope of other counterterrorism measures, and (3) that we may have a potential gap in security. In this way, the study of unused counterterrorism laws can prove just as insightful and helpful an exercise as the more traditional analysis of frequently-used counterterrorism measures.

Keywords: Counterterrorism, Lone-Wolf Amendment, Alien Terrorist Removal Court, Section 412 of the Patriot Act