Judicialization or Renunciation? Judges in Today’s Landscape of Anti-Terrorism Laws

Abstract

Judges in constitutional democracies face common dilemmas navigating today’s landscape of anti-terrorism laws. Whether it is with respect to the oversight of investigative detentions or approval of control orders, security certifi cates, and other offi cial powers calculated to investigate and prevent terrorism and related activities, the judicial role has expanded into fi elds where the appropriate balancing of security concerns with individual liberties is exceedingly complex. The need for such balancing is, of course, one of the central justifications for judicial involvement: the judiciary is relied upon to bring characteristicindependence and integrity to the review of official powers, ensuring compliance betweenthe latter and the higher law of the Constitution. There is nevertheless an unsettling implication that sometimes attends judicial service in these fields — namely, it is not always clear whether the judicial role is truly one of constitutional enforcement and oversight, or one that allows administrative actors to borrow the integrity of the courts in furtherance of constitutionally-suspect ends.