Preferring Order to Justice

86 Pages Posted: 7 Jun 2012 Last revised: 23 Oct 2012

See all articles by Laura L. Rovner

Laura L. Rovner

University of Denver Sturm College of Law

Jeanne Theoharis

City University of New York (CUNY) - Department of Political Science

Date Written: May 17, 2012


In the decade since 9/11, much has been written about the “War on Terror” and the lack of justice for people detained at Guantanamo or subjected to rendition and torture in CIA black sites. A central focus of the critique is the unreviewability of Executive branch action toward those detained and tried in military commissions. In those critiques, the federal courts are regularly celebrated for their due process and other rights protections. Yet in the past ten years, there has been little scrutiny of the hundreds of terrorism cases tried in the Article III courts and the state of the rights of people accused of terrrorism-related offenses in the federal system. The deference to assertions of national security that degraded protections for detainees at Guantanamo has similarly degraded the protections for Muslims facing terrorism charges in the federal courts. This Essay provides a close examination of one of those cases — that of Syed Fahad Hashmi — and reveals rights abridgement throughout the legal process (intrusive surveillance, vague material support charges, the use of prolonged pre-trial solitary confinement, classified evidence, the use of political activities to demonstrate mindset and intent). The federal courts have permitted such rights abridgements,largely abdicating their role as a check on Executive power and imperiling the rights of those being tried in the Article III courts.

Suggested Citation

Rovner, Laura L. and Theoharis, Jeanne, Preferring Order to Justice (May 17, 2012). American University Law Review, Vol. 61, p. 1331, 2012, U Denver Legal Studies Research Paper No. 12-18, Available at SSRN:

Laura L. Rovner (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Jeanne Theoharis

City University of New York (CUNY) - Department of Political Science ( email )

2900 Bedford Avenue
3413 James Hall
Brooklyn, NY 11210
United States

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