Judging Terror in the 'Zone of Twilight': Exigency, Accountability, and Procedure after September 11
68 Pages Posted: 19 Nov 2003
Date Written: August 25, 2003
Efforts by the political branches to deal with the threat of mass violence by transnational networks have created what Justice Jackson in the Steel Seizure case called a "zone of twilight" for courts. Executive assertions of power to fashion exigent procedures for the confinement and adjudication of alleged terrorists have posed a particularly nettlesome dilemma. Courts can either defer to the executive, trusting that the special circumstances of the case will seal off any lasting harm to the principles that guide the rest of the legal system, or can seek refugee in a stalwart absolutism that accepts even catastrophic harm to innocents as the price of democracy.
Navigating through the zone of twilight requires a pragmatic focus on the implications of exigent procedures for both public safety and the relationships between the three branches. The history of both habeas corpus and remedies jurisprudence reveals just such a pragmatic turn, which I call institutional equity. While no road map is available, institutional equity offers a framework for analysis of issues such as the detention of alleged "unlawful combatants" that avoids the dangers of both deference and absolutism.
Keywords: Law and Terrorism, Constitutional Law
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