Reconstructing Habeas: Towards a New Emergency Scheme Open Access

Yang, Christina (2011)

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Reconstructing Habeas: Towards a New Emergency Scheme
By Christina Yang

When an attack hits far too close to home, and an entire nation is left gasping in its sudden, violent wake, there is a collective feeling that something has changed. People begin to wonder: Are we safe? Even as we are brought closer together by the common bond of tragedy, we become hyper-vigilant and hyper-paranoid. Eager, competitive politicians become embroiled in a national security rat race, each looking to one up the other on "toughness." Soon enough, increasingly repressive policies are written into law - each promising greater security for the nation. Sacrifices, they say, are both necessary and expected in crises. These are not ordinary times, but extraordinary times. Yet what is too often waylaid in such exigent times?

Liberty. Rights. All those things we value both in the abstract and in the everyday are somehow lost in the wartime scramble, somehow made insignificant, amidst all the panic, anger, and confusion. The United States, however, is not an authoritarian government. America is a country that values liberty. Liberty is a big part of who we are as Americans - both at home and abroad. So when we sacrifice our liberties, when we fill the value of liberty with air instead of substance when balanced against security, we forget that America was founded on an idea, a vision of freedom, of rule by democracy and respect of law, and that the idea is only good, meaningful, and valuable insofar as it is practiced.

So the question we ask ourselves must not be "When do we value liberty enough to interfere with security," but "When do we value security enough to interfere with liberty?" Unfortunately, this is not an easy question to answer - nor is it a question which possesses only one "correct" solution. In this paper, however, I postulate a better solution than what has been offered thus far by arguing for the writ of habeas corpus - i.e., the Suspension Clause - to be set as the absolute minimum in exigent times.

Table of Contents

Table of Contents
Chapter 1: Setting the Stage
Chapter 2: Jack Bauer Syndrome
Chapter 3: The Emergency Constitution
Chapter 4: Reconstructing Habeas

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