Terrorism And The Constitution

Tracing the history of government intrusions on Constitutional rights in response to threats from abroad, Cole and Dempsey warn that a society in which civil liberties are sacrificed in the name of national security is in fact less secure than one in which they are upheld. A new chapter includes a discussion of domestic spying, preventive detention, the many court challenges to post-9/11 abuses, implementation of the PATRIOT ACT, and efforts to reestablish the checks and balances left behind in the rush to strengthen governmental powers.

Tracing the history of government intrusions on Constitutional rights in response to threats from abroad, Cole and Dempsey warn that a society in which civil liberties are sacrificed in the name of national security is in fact less secure than one in which they are upheld. A new chapter includes a discussion of domestic spying, preventive detention, the many court challenges to post-9/11 abuses, implementation of the PATRIOT ACT, and efforts to reestablish the checks and balances left behind in the rush to strengthen governmental powers.

The conjunction of Islamic fundamentalism, WMD, and terrorism has set the stage for a new form of 'warfare' and ushered in a period of national reflection and debate about the proper balance between national security and the rights of the individual. This book contributes to the ongoing national debate by providing easy access to relevant documents from major post-9/11 cases that highlight central constitutional issues raised by the war on terrorism.

Also includes information on aftermath of terrorist attack, Al Qaeda, George W. Bush, civil liberties, U.S. Congress, U.S. Constitution, courts, detainees, detention, due process, emergency constitution, emergency powers, emergency regime, existential crisis, extraordinary powers, Founding Fathers, framework statutes, freedom, habeas corpus writ, Iraq war, Abraham Lincoln, Jose Padilla, panic reaction, precedents of presidential powers, presidency, president, Franklin D. Roosevelt, rule of law, second strike, Second World War, secrecy, seizure, September 11, 2001, state of emergency, supermajoritarian escalator, terrorist attack, torture, United Kingdom, etc.

Terrorism, the Laws of War, and the Constitution examines three enemy combatant cases that represent the leading edge of U.S. efforts to devise legal rules, consistent with American constitutional principles, for waging the global war on terror. The distinguished contributors analyze the crucial questions these cases raise about the balance between national security and civil liberties in wartime and call for a reexamination of the complex connections between the Constitution and international law.

This edited collection explores the topic of constitutionalism across borders in the struggle against terrorism, analyzing how constitutional rules and principles relevant in the field of counter-terrorism move across borders. Various chapters underline how constitution-like norms consolidate at the level of international and supranational organizations as a limit to the exercise of public power in the field of counter-terrorism policy, especially counter-terrorism financing. Other chapters examine the extraterritorial application of constitutional rights and the migration of constitutional norms – or anti-constitutional practices – from one state to another. Still others consider how transnational cooperation between states in areas such as intelligence gathering and data sharing may call for updating domestic constitutional law rules or for new international law compacts entrenching rights across borders. What emerges is a picture of the complex interplay of constitutional law, international law, criminal law and the law of war, creating webs of norms and regulations that apply in the struggle against terrorism conducted across increasingly porous borders. The book will be of particular interest to academics and graduate or postgraduate students working in the fields of constitutional law, international law, human rights, comparative law and national security law. It may also be of interest to practitioners concerned with national security, counter-terrorism, and related questions of individual rights.

Taking as a starting point the widely accepted view that states confronted with terrorism must find a proper equilibrium between their respective obligations of preserving fundamental rights and fighting terrorism effectively, this book seeks to demonstrate how the design and enforcement of a human rights instrument may influence the result of that exercise. An attempt is made to answer the question how a legal order's approach to the limitation of rights may shape decision-making trade-offs between the demands of liberty and the need to guarantee individual and collective security. In doing so, special attention is given to the difference between the adjudicative methods of balancing and categorisation. The book challenges the conventional wisdom that individual rights, in times of crisis, are better served by the application of categorical rather than flexible models of limitation. In addition, the work considers the impact of a variety of other factors, including the discrepancies in enforcing an international convention as opposed to a national constitution and the use of emergency provisions permitting derogations from human rights obligations in time of war or a public emergency. The research questions are addressed through a comparative study of the terrorism-related restrictions on five fundamental rights protected under the European Convention on Human Rights and the United States Constitution: the right to freedom of expression, the right to freedom of association, the right to personal liberty, the right to privacy, and the right to a fair trial. The book offers both a theoretical account of the paradoxical relationship between terrorism and human rights and a comprehensive comparative survey of the major decisions of the highest courts on both sides of the Atlantic.