Judicial Review of the State's Anti-Terrorism Activities: The Post-9/11 Experience and Normative Justifications for Judicial Review

Abstract

The years since 9/11 have seen unprecedented global efforts to combat the evil of terrorism. The legislative and especially the executive arms of many governments have been very active. Many courts have engaged in judicial activism in the sense that they have invalidated executive and even legislative action taken by the state in the name of combating terrorism. This article will examine the judicial role with respect to the state’s anti-terrorism activities. It will suggest that with some exceptions, courts in Canada, the United States and the United Kingdom have been surprisingly active with respect to review of the state’s anti-terrorism activities. One exception is the Indian Supreme Court’s decision upholding anti-terrorism legislation in that country that has since been repealed. In addition to making the empirical observation about the surprising amount of judicial activism since 9/11, this article will also argue that judicial activism in reviewing state anti-terrorism activities for respect for human rights can be normatively justified. The normative justifications for judicial review include the unique role of courts in protecting human rights and unpopular minorities, frequently exaggerated claims of legislative and executive expertise in combating terrorism and the ability of courts to accommodate social interests in preventing terrorism through proportionality analysis and dialogue between courts and legislatures. Although courts should be aware of the limitations of their own institutional competence, they should not ignore the limits of legislative and executive competence in counter-terrorism.

Keywords: judicial review, anti-terrorism, judicial activism, human rights, institutional competence, national security