The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure. There is something in the Court’s cases for both camps. Before 9/11, the Court deferred to the legislature’s attempts at promoting security. This inclination, however, changed dramatically in the post-9/11 period. In a string of cases the Court has consistently invalidated national security legislation for failing to adequately take account of constitutionally protected liberty interests.
China’s legal approach to national security threats, and emergency situations in general, is more complex and subtle and thus richer in implications for comparative law and for understanding transnational legal influence. … Given China’s sheer scale and international importance, its legal reaction to any major issue is a substantial part of the worldwide response. China’s discussion, adoption, and use of legal means to address identified dangers – especially terrorism – have invoked concerns familiar from post-9/11 developments elsewhere and have engaged international legal norms, including ones that emerged in the wake of 9/11 and others that predated and survived it. The Chinese example thus does, or at least should, matter.
The Justice Department’s Office of Professional Responsibility (OPR) excoriated the legal work done by John Yoo and Jay Bybee of the Office of Legal Counsel on the torture memos, but DOJ’s ultimate decision stopped short of referring Yoo and Bybee for professional discipline. Serious questions remain, particularly since the OPR was unable to obtain the testimony of many high-level officials who played critical roles in authorizing torture. A full-scale investigation, preferably by an independent commission not part of the very department implicated in the wrongdoing, is still necessary. Great Britain conducted such an independent inquiry into the abusive practices used against IRA prisoners in the 1970s, and the United States must do the same. The essential lesson must be that torture and cruel treatment are not policy options, even when lawyers are willing to write opinions blessing illegality.
Reviewing Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism by Stewart A. Baker
“Stewart Baker has written an enthralling, yet alarming, account of the difficult road we as country have traveled since 9/11.1 Part memoir of a veteran senior government official, part lesson in interdepartmental infighting and bureaucratic power games, part philosophical musing on technology’s benefits and potential costs, and part vigorous advocacy enlivened by saucy humor and snappy prose, Baker’s book summons us to think hard about how new technologies – air travel, computer functionality, biotechnology – jeopardize our lives and our way of life even as they also promise to brighten our futures.”
At the January 2009 Association of American Law Schools’ Section on National Security Law panel discussion, I and others urged the incoming Obama administration to make a clear and decisive break with the Bush administration’s national security policies. Six months later, the new Administration has not done so. Rather, it has acted in a contradictory manner: boldly asserting in its first days that it would ban torture and close Guantánamo, but in practice continuing many of the Bush antiterrorism policies. President Obama’s major speech on Guantánamo and other national security issues reiterated his desire to close Guantánamo, but also argued that the United States could hold detainees in custody indefinitely without trial or try them by military commissions. The Administration has adopted the Bush administration position that detainees held in U.S. custody in Afghanistan indefinitely have no right to seek habeas corpus in U.S. courts. It has also continued to assert the state secrets privilege to attempt to block lawsuits seeking accountability for extraordinary rendition and torture.