Litigating National Security Cases in the Aftermath of 9/11
Journal of National Security Law and Policy, Vol. 3, p. 1, 2007
28 Pages Posted: 1 May 2007
The treacherous terrorist attacks on September 11, 2001, and the aftershocks that are still being felt years later, have had a profound effect on the legal landscape in the United States. In 9/11's immediate aftermath, Congress, in a rare and fleeting moment of bi-partisanship, gave the President far-reaching authority to combat terrorism. The President has used this authority to undertake massive and ongoing military operations in Iraq and Afghanistan, to detain indefinitely and without criminal charges hundreds of foreign nationals and even American citizens, to step up counter-terrorism activity domestically and world-wide, and to cut back on public access to government information.
With few exceptions, the courts have shown considerable deference to executive branch actions taken in the name of fighting terrorism, giving the President a green light to wage a global war on terror. Such judicial deference to national security claims is neither new nor surprising. But the accretion of executive power in the wake of 9/11 is extraordinary, even if not unprecedented, and, in a government that operates under a structural Constitution that depends on checks and balances, it provides reason for concern. My submission is that the 9/11 attacks still cast a shadow that profoundly affects how courts deal with national security claims, and that that shadow is likely to persist for some time. Since 9/11, courts have been far more reluctant than usual to give searching scrutiny to national security claims. A comprehensive review of the Administration's invocation of national security to justify the actions it has taken is beyond the scope of this essay. Instead, drawing on my litigation experience and using a few of the cases I have worked on, I try to illustrate just how far the Administration has gone to press its national security arguments and just how willing courts have been to defer to those claims.
Keywords: national security, terrorist
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