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St. Thomas Law Review

Saby Ghoshray

First Page

249

Document Type

Article

Abstract

While exploring the full scope of the governmental abuse of power since 9/11 in the first thread, I restrict my examination to a narrow scope of indefinite detention and explore whether the heightened need for security necessarily gives rise to abuses of power. This is especially important, as the fundamental rights to liberty of some individuals could be subject to a much stricter interpretation of the governing legal principles. This inquiry runs parallel to my analysis as to whether the heightened security need post-9/11 created new constitutional grounds to mask the fundamental right to liberty. The second thread of this article explores the tension between security and liberty and examines the drawback of legitimacy due to the unmistakable shifting of the locus to the executive branch. This has allowed the development of a legal regime, in which innovative instruments of law have been created like the Surveillance Courts, Spy Courts, and Military Tribunals, whose overreaching tentacles are crossing the frontiers of privacy, liberty and due process in the lives of countless Americans. Also, the expanded provisions of the Patriot Act have encroached into the sacred domain of the constitutional due process. This encroachment has subjected ordinary citizens to new criminal prosecutions brought against them by agents of the executive branch. The final thread of this article examines the series of Supreme Court cases involving the scope, constitutionality, and jurisdiction of military tribunals. In the cases of Rasul v. Bush, Hamdi v. Rumsfeld" and the most recent, Hamdan v. Rumsfeld, we are constantly reminded of the lofty ideals and expanded conception of liberty that has been the bedrock of American constitutionalism. I will argue in this section that the circumstances of these cases demonstrate that while it is important to focus on protecting the Nation through vigorous prosecution of terrorists, it is as important to ensure that the liberty of the innocent is not trifled away. Finally, the significance of this work can be seen through a multidimensional looking glass. First, the tension between the right to liberty and the need for security has never been examined through the recognition of a false dichotomy between the two. Second, I establish in this article that a full evaluation of the security-liberty duality is not complete without evaluating several legal constructs. Most notably, the legal paradigm that supports a differential and hierarchical threshold of fundamental rights is inconsistent with my reading of the constitutional due process clause. I attempt to examine some of the factors that are instrumental in shaping such a legal paradigm post-9/11 by exploring whether we are actually more secure now than before the events of 9/11. My article will allow us to better understand the full implications of this security-liberty duality in the post-9/1 I era.

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