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45 New Eng. L. Rev. On Remand 1 (2009-2011)

handle is hein.journals/remand1 and id is 1 raw text is: THE TERROR GOVERNMENT: RECONCILING NATIONAL SECURITY IMPERATIVES AND THE RULE OF LAW Reviewing NATSU TAYLOR SAITO, FROM CHINESE EXCLUSION TO GUANTANAMO BAY: PLENARY POWER AND THE PREROGATIVE STATE. Boulder: University Press of Colorado. 2007. Pp. 497. $34.95. LAWRENCE M. FRIEDMAN* Abstract. In this Review Essay, I examine Professor Natsu Taylor Saito's prescription for reinvigorating the rule of law as a guiding principle in American domestic and foreign policy-making, as outlined in her book, From Chinese Exclusion to Guantcnamo Bay: Plenary Power and the Prerogative State. Her response to the danger of the prerogative state is essentially democratic, and I suggest that any democratic effort must include a role for the judiciary. Indeed, those who support the rule of law may find some solace in U.S. Supreme Court cases concerning various aspects of the war on terrorism; those cases offer a means by which we may begin the process of reconciling the imperatives of national security with the importance of adherence to binding legal rules. INTRODUCTION When we reached Korematsu v. United States' in my constitutional law course a few semesters back, I asked my students whether they thought similar restrictions, against Americans of Middle-Eastern descent, could * Professor of Law, New England School of Law. I presented an earlier version of this essay at the annual meeting of the Law & Society Association in Montreal, Canada. in May 2008. I thank Jeremy Telman for inviting me to join a panel discussion of Natsu Taylor Saito's book, and I thank my fellow panelists-Jeremy, Taunya Banks and Fiona de Londras-for an engaging discussion of the book and issues of plenary power. Thanks also to my colleague Victor Hansen for his comments and suggestions, and to Tim Donahue for his able research assistance. 1. 323 U.S. 214 (1944). 1

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