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By Laura K. Donohue

Within the aftermath of a terrorist assault political stakes are excessive: legislators worry being noticeable as lenient or detached and infrequently furnish the administrative broader gurus with out thorough debate. The judiciary's position, too, is specific: constitutional constitution and cultural norms slim the courts' skill to envision the administrative in any respect however the margins. The dominant 'Security or Freedom' framework for comparing counterterrorist legislations hence fails to trap an enormous attribute: elevated government strength that shifts the stability among branches of presidency. This booklet re-calculates the price of counterterrorist legislation to the uk and the U.S., arguing that the wear and tear brought on is considerably more than first seems to be. Donohue warns that the proliferation of organic and nuclear fabrics, including willingness at the a part of extremists to sacrifice themselves, might force each one nation to take more and more drastic measures with a resultant shift within the easy constitution of either states.

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Constitutional Reform Act 2005, c. 4. This act also stripped the lord chancellor of his responsibilities as Speaker of the House of Lords and head of the judiciary. There are proposals to further reform the manner in which lords are chosen: although general agreement has been reached on retaining the twenty-six “Lords Spiritual” (two archbishops and the twenty-four most senior bishops from the Church of England), it has not been decided whether the remaining members of the House of Lords ought to be appointed, elected, or a combination of the two.

Even when terrorist cases are left in the ordinary criminal system, new rules regarding evidence, habeas corpus, and client-attorney privilege for terrorist suspects may further restrict the judiciary’s role. Some American constitutional law scholars see little that is problematic about this situation. Eric Posner, for instance, argues that the executive ought to be given wide latitude to restrict rights and adjust policies when national security demands it. 133 If, however, the courts are allowed access to information, the argument that they are ill suited to considering national security cases becomes weaker, as I discuss in Chapter 6.

Consider surveillance. How does a person demonstrate that he or she is under surveillance when the very existence of the program is classified? Even when programs are known – like Total Information Awareness or the National Security Agency wiretapping operation, discussed in Chapter 4 – it may be extremely unclear exactly who is under surveillance, who has access to information about that target, and how those data are being used. Efforts to obtain this information through the Freedom of Information Act, as discussed in Chapter 5, can be blocked under the national security exception.

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