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Copyright (c) 2010 Western New England Law Review Association, Inc.
Western New England Law Review

SYMPOSIUM: GLOBAL PERSPECTIVES ON NATIONAL SECURITY: FOREWORD: NATIONAL SECURITY'S DISTORTION EFFECTS

2010

Western New England Law Review

32 W. New Eng. L. Rev. 285

Author

Stephen I. Vladeck*

Excerpt



In retrospect, we should hardly be surprised that "national security" concerns have become so pervasive across such a wide and diverse range of legal fields over the past decade. As our social, political, and legal cultures have evolved in response to one of the most traumatic attacks on the United States in its history, it is only natural that the government's interest in defending the nation - and, specifically, in preventing another act of terrorism even approaching the scale of September 11 - has played such a ubiquitous role in so many seemingly unrelated legal disciplines.

To be sure, there are the obvious cases where the national security implications are inescapable, such as lawsuits arising out of the detention of noncitizens at Guantanamo Bay, 1 or challenges to military commissions, 2 or even the civilian criminal prosecutions of high-profile terrorism suspects like Zacarias Moussaoui, 3 Jose Padilla, 4 Ali Saleh Kahlah al-Marri, 5 Richard Reid, 6 and Ahmed Omar Abu Ali. 7 But even (if not especially) in less obvious cases, examples abound of national security concerns precipitating an expansion or alteration of established precedent: The Second Circuit has held that the Supreme Court's "special needs" doctrine, ordinarily invoked to justify mass, suspicionless searches wholly unrelated to law enforcement, 8 authorizes random searches of anyone traveling on the New York City subway system 9 - perhaps a surprising extension of precedent until one considers its temporal proximity to the subway bombings in Madrid and London (not to ...
 
 
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