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22 Yale L. & Pol'y Rev. 197 (2004)
The Costs of Post-9/11 National Security Strategy

handle is hein.journals/yalpr22 and id is 203 raw text is: Developments in Law and Policy: The Costs of Post-9/11 National Security Strategy Heidee Stoller,t Tahlia Townsend,t Rashad Hussain,t and Marcia Yablonttt INTRODUCTION The American legal system has always attached special significance to na- tional security issues. It is not an anomaly that treason is the only crime actu- ally defined in the Constitution. Since the founding of this country, the judici- ary has been intimately involved in the government's efforts to protect against national security threats. However, since the events of September 11, 2001, the courts' role in national security matters has become increasingly important. Many of the government's initiatives implemented in the wake of September 11 raise serious constitutional questions, and it is up to the judiciary to articu- late the constitutionally permissible balance between ensuring national security and protecting civil liberties. Since the September 11 terrorist attacks, there have been many instances in which courts have had to address the use of constitutionally questionable means to increase national security. This Development will explore three recent legal developments relating to national security: the use of material witness warrants; racial profiling and increased registration requirements for non-immigrants; and open access to deportation hearings and information on Immigration and Natu- ralization Service (INS) detainees. Although developments in these three areas raise very different legal is- sues-from equal protection concerns, to Fourth Amendment violations, to is- sues of free speech-the analysis and factors the courts have used to decide these cases is highly similar. In all of these cases, the courts have had to bal- ance a desire to protect national security against a concern that such protection impermissibly intrudes on constitutionally protected rights. In addition, the courts have had to decide if the protections supposedly provided by the chal- lenged government initiatives help prevent terrorism or if, in some instances, they may actually increase animosity towards the United States and make fur- ther terrorist activity more likely. The courts hearing these cases must also de- tYale Law School, J.D. expected 2005. Authors of Part I, Material Witness Warrants. ttYale Law School, J.D. expected 2005. Author of Part II, Exit-Entry Programs. tttYale Law School, J.D. expected 2004. Author of Part III, National Security and the Role of Judicial Deference.

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