Document Type

Working Paper

Publication Date

2015

Abstract

In numerous contexts today, ranging from no-fly lists, to the designation of foreign terrorist organizations, to controls over foreign investments in the United States, federal authorities reach decisions having dramatic consequences for individuals’ liberty and property on the basis of information that those individuals cannot obtain, even in summary form. Recent and pending litigation has challenged these deprivations on due process grounds, with only moderate success. Perhaps unclassified information on which the government has acted must be revealed, with an opportunity given to challenge it and to submit contrary evidence; but in the words of the DC Circuit writing last summer, “due process does not require disclosure of classified information supporting official action. [That information] ‘is within the privilege and prerogative of the executive, and we do not intend to compel a breach in the security which that branch is charged to protect.’” Reviewing these developments, this paper marks a sharp contrast with the greater willingness of courts to force information-sharing during the Cold War-McCarthy era, when Communism and Communist front organizations, not terrorism, were the driving concerns. The present situation has elicited a range of dark scholarship addressing the impact of emergency on liberties and procedures. A colleague has argued in celebrated scholarship that “If we are to protect our civil rights and civil liberties against [today’s terrorist] threats, the aggressive use of informants, surveillance, wiretaps, searches, interrogations, and even group-based profiling must be measured not only against the liberties these practices constrict, but also with respect to the liberties they may protect. It is simply not sufficient to say that augmenting [our usual law enforcement] practices with laws and practices more appropriate to counterterrorism is necessarily inconsistent with protecting our civil rights and civil liberties.” Although today’s courts remain conscious of the rights impinged upon by national security concerns and willing to offer some protection to them, one may see a regrettable regression in the contrasts between the treatment of procedural claims in the Cold War’s emergencies and today’s.

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