Arkansas Law Review
Following the attacks of 2001, the United States has been confronted with great challenges in its efforts to protect its soil, its people, and its interests. Perhaps none have been as challenging as the extent to which the President and other officials may act without oversight in their acquisition of intelligence and use of that information. Many novel practices have had repercussions across the globe as well as in Arkansas: the long-term detention of both foreign nationals and American citizens without judicial review; the use of brutal enhanced interrogation procedures on those detained; the trial of prisoners by military commissions when the courts are open; the mass interception of communications and seizure of papers without a warrant; and the routine excuse of national security to justify increased police activities against immigrants, students, travelers, citizens, and ordinary criminal suspects.
Since 2001, the Congress, the Supreme Court, federal and state officials, lawyers and bar associations have been engaged in myriad debates over the power of the executive to define its own authority over these matters, as well as the powers of Congress to retreat from what was once thought to be the clear dictates of both constitutional and international law. These debates have brought into question the roles of the people in a democracy and of the rule of law, as well as the degree, in times of danger, to which democracy and legal rules are essential or optional. Through these debates thread arguments of necessity and effectiveness: what is gained and what is lost if torture, brutality, domestic spying, and detention without review are allowed?
Lord Robin Butler, William Howard Taft IV, Alberto Mora, and Stephen M. Sheppard, A Hartman Hotz Symposium: Intelligence, Law, and Democracy, 60 Ark. L. Rev. 809 (2008).