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At War with Civil Rights and Civil Liberties: An Introduction

At War with Civil Rights and Civil Liberties: An Introduction



On July 28, 2004, the Supreme Court of the United States decided three cases at the center of the constitutional balance between civil rights and civil liberties and the powers of the government to wage war. In the minds of many Americans, the September 11, 2001, attacks fundamentally changed the nature of constitutional protections and dramatically expanded the power of the executive branch at the expense of the judiciary. The Bush administration launched the War on Terrorism, followed by the war in Afghanistan, followed by war in Iraq. These wars were not declared in the only way the Constitution provides that wars should be declared, but nonetheless these military adventures are wars in every other sense of the word. American lives are being lost; our country's standing in the world is at stake and its treasures are being spent. Battlefield prisoners are being captured and pursued.

The outcomes and reasoning of these three decisions were somewhat mixed. These decisions reinforced the nation's commitment to the rule of law and constitutionalism, but the justices took a decidedly pragmatic view of the executive power over foreign affairs and waging war. In Rasul v. Bush, the administration contended that it had the inherent power flowing from the War on Terrorism to hold foreign terrorist suspects indefinitely outside of the contiguous United States without access to legal counsel. Thus, more than six hundred non-Afghan nationals (Australians and Kuwaitis) were confined at the isolated American naval base at Guantanamo Bay, Cuba. In Hamdi v. Rumsfeld, the administration went further to maintain that it could designate an American citizen captured in Afghanistan, who allegedly was fighting against American troops in support of al Qaeda and the Taliban regime, as an enemy combatant and deny him legal counsel in order to protect the national security interests of the United States. In the third case, Rumsfeld v. Padilla, an American citizen was arrested on a flight from Pakistan to Chicago and held incommunicado in military custody-without ever being charged-because the government suspected him of planning acts of terror such as exploding a so-called dirty bomb, a device that would explode and contaminate a wide area with nuclear radiation. For many Americans, the Bush administration's policies constituted a dramatic and threatening transformation of traditional constitutional civil rights and civil liberties, even recognizing that the country was waging a de facto if not a de jure war. The Court's opinions in Rasul v. Bush and Hamdi v. Rumsfeld constitute landmark cases and appear in chapter 9 of this book. These opinions document how members of the Supreme Court have responded thus far to the current crisis in the name of the Constitution. The justices were obliged to explore the same constitutional leitmotifs that shape the warp and woof of this book. The stakes could not be higher for our country and for our way of life. Constitutional self-government and individual liberty lie in the balance in a number of vital areas:

• the constitutional implications of the War on Terrorism

• the delicate balance between civil rights and civil liberties of citizens and noncitizens during times of war

• the significance of the great writ, habeas corpus, as a shield against arbitrary detention

• the scope of the executive's powers in wartime

• Congress's responsibilities during times of war and national emergency

• the proper role of the Supreme Court and the lower federal courts

• the importance of the rule of law for our polity



Publication Date



Rowman & Littlefield Publishers


Civil rights, Constitutional law, National security, Law and legislation, Rule of law, War and emergency powers, War on Terrorism, 2001-2009


Civil Rights and Discrimination | Law

At War with Civil Rights and Civil Liberties: An Introduction