Civil Liberties during National Emergencies: The Interactions between the Three Branches of Government in Coping with Past and Current Threats to the Nation’s Security


Echoing the obvious, the Supreme Court historically has recognized that “no governmental interest is more important than the security of the Nation.” In light of the events of September 11, 2001, and the President’s declared “war on terrorism,” our government is being challenged, as never before, to determine to what extent civil liberties should be compromised when the nation’s security is at risk. As Supreme Court Justice Sandra Day O’Connor publicly remarked soon after September 11, “we’re likely to experience more restrictions on personal freedom than has ever been the case in our country.” She posed two questions “likely to take years to resolve”:

1. Can a society that prides itself on equality before the law treat terrorists differently than ordinary criminals?

2. At what point does the cost to civil liberties from legislation designed to prevent terrorism outweigh the added security that that legislation provides?

In its recent June 28, 2004, decision in Hamdi v. Rumsfeld, the Supreme Court began to answer these questions, with Justice O’Connor herself writing the plurality decision. Although eight members of the Court rejected the Fourth Circuit Court of Appeals’ determination that Hamdi’s detention was not justiciable, the court issued four opinions which exemplify the tensions and uncertainties surrounding the interactions between the three branches of government in grappling with issues concerning threats to the nation’s security.

This article will explore the manifestations of these tensions and their impact on civil liberties as the Executive, Legislative, and Judicial branches have sought to define their respective roles and responsibilities in addressing past and current national security crises. Part I will examine the scope of the powers that the Constitution and Congress have conferred upon the President to act in times of national emergency. Part II will explain modem anti-terrorism legislation enacted by Congress before September 11; Part III will review the post September 11 anti-terrorism legislation. Finally, Part IV will explore judicial decisions addressing the President’s war-making powers, historic cases addressing the curtailment of civil liberties during past national emergencies, and decisions concerning the recent terrorist crisis.

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Panel I: Defund Means Defund Andrea Ritchie (she/her) is a Black lesbian immigrant whose writing, litigation, and advocacy has focused on policing of women and LGBT people of color for the past two decades. She is currently a researcher with