Finding Constitutional and International Norms in Anti-Terrorism Practices

24 Pages Posted: 20 Oct 2003

See all articles by Peter J. Spiro

Peter J. Spiro

Temple University - James E. Beasley School of Law

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.

Suggested Citation

Spiro, Peter J., Finding Constitutional and International Norms in Anti-Terrorism Practices. Available at SSRN: https://ssrn.com/abstract=441380 or http://dx.doi.org/10.2139/ssrn.441380

Peter J. Spiro (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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