Two positions, or paradigms, have emerged which attempt to make comprehensive sense of American law and policy since 9/11/01, the civil liberties paradigm and the prevention paradigm. The prevention paradigm maintains that in the face of the current “catastrophic emergency,” the executive must be given wide discretion, e.g., to detain, interrogate, and try enemy aliens and citizens suspected of supporting or engaging in terrorist acts, without congressional authorization and without judicial review or supervision. The civil liberties paradigm, in its most expansive version, envisions that any derogation whatever from the model of the criminal trial subject to all constitutionally mandated procedures and protections for anyone in U.S. custody, in the U.S.A. or extraterritorially, will lead to severe and perhaps permanent corruption of our constitutional democracy. The question debated between the two camps is, what is the proper balance between security and liberty in the era of the global war on terror? At the international level similar questions are projected with respect to tensions between defense and security on the one hand and international law and human rights on the other.
Topics will include what is terrorism, terrorism and domestic civil liberties, terrorism and international law, impact of the global war on terrorism on domestic criminal procedure including investigation, detention and trial, immigration law, military law and international law.