Following the initial shock in the wake of 9/11, national courts began to scrutinize counterterrorism measures. Hesitant at first, they subsequently asserted novel claims that bolster their judicial authority, claims that may well resonate beyond the context of counterterrorism. The evolving practice of national courts is characterized by a number of features, all quite striking given previous trends and initial expectations. First, the courts refuse to function as a rubberstamp for the actions of the political branches. They respect the executive and legislature and seek to engage in meaningful deliberation with them—and, no doubt, to share responsibility with them for the outcomes—but they also signal their intention to set limits for counterterrorism measures they deem excessive. Second, courts from the Anglo-American tradition alternate between couching their activism in formal language and asserting themselves as the better-equipped institution to balance between security and liberty. Third, they invoke international law and engage in serious analysis of the international norms they apply. This Chapter describes and explains this evolving practice. It suggests that the courts reacted to far-reaching restrictions of rights that threatened not only the individual but also the judiciary’s very authority to protect against governmental abuse of power. To prevent their jurisdictions from becoming a haven for terrorists and to preempt international pressure on their governments not to comply with the courts’ rulings, it was necessary for those courts to coordinate outcomes with their counterparts across national jurisdictions. The availability of identical or similar norms—international law and human rights law—has facilitated an emerging inter-judicial coordination effort.
Civil Rights and Discrimination | Comparative and Foreign Law | Constitutional Law | Human Rights Law | International Law | Judges
Date of this Version
, "United We Stand: National Courts Reviewing Counterterrorism Measures" (February 2007). Tel Aviv University Law Faculty Papers. Working Paper 42.