In the Name of National Security: How Post 9/11 Measures Undermine Minority Rights

How Post 9/11 Measures Undermine Minority Rights

Abstract

National security has increasingly become an important topic in legal and political discourse. The threat of terrorism has led governments to adopt some controversial laws and policies that pose a risk to civil liberties, and in particular, have the effect of oppressing marginalized groups, who are often said to pose risks to national security. While the relationship between national security and civil liberties or human rights has been the focus of previous research papers, an empirical analysis of (express and implicit) instances where measures restricted civil liberties for the protection of national security, and how courts have responded, is largely lacking in the literature. Yet, this is a crucial question to foster a better understanding of the impact of national security measures on marginalized groups.

This article thus conducts an empirical analysis of some selected laws, policies, and executive orders (also referred to herein as ‘national security measures’) adopted in the United States since the terrorist attacks of 9/11 as a case-study to analyze this question. This article aims to assess, through empirical data and legal analysis, the extent to which national security measures have an adverse effect on minority groups. It examines measures that expressly target those groups as well as measures that have the effect of oppressing those groups in their application, even when on their face they do not target any specific groups. The article ultimately claims that whether expressly or implicitly, national security measures adopted in the United States since 9/11 disproportionally adversely affect marginalized groups.