Justice at War: Civil Liberties and Civil Rights During Times of Crisis

5. Taming Terrorism

5 TamingTerrorism WHEN WE RECONVENED next afternoon, I had to force myself to concentrate and seem normal. Rodrigo’s voice welcoming me and asking how my seminar had gone seemed to be coming out of a pinktinged fog. Teresa had met me on the steps of the townhouse and, glancing around to see if anyone was looking, given me a quick hug and kiss on the cheek. Except that the kiss had ended, somehow, with a quick brush of her lips on mine. So soft! Taking my hand in hers, she led me up the steps, warning me in a low voice that the young people were upstairs waiting. I felt like a teenager as I emerged in the entryway of her apartment to the sound of Rodrigo and Giannina talking inside. Teresa gave my hand a quick squeeze, then let go. “They’re in there.” Minutes later, Teresa was bringing tea and cookies from the kitchen and gesturing that we should begin. “I have a few things for dinner later on if you can stay, Gus.” I nodded, mutely but gratefully, and Rodrigo began: “The baby’s just had his feeding. So we should have a little time. Yesterday, we stopped just as I was going to suggest a way of generalizing the lessons of justice at war. I was talking about this with Laz.” “You’re lucky to have such a good colleague,” I said. “Even if he is a conservative. He keeps me honest. And we end up seeing eye-to-eye on more than you might imagine.” “Not to mention his helping with the institute while you were away. Some of the younger fellows who hadn’t read his work assumed he was a lefty like you. Even when they realized he was not, they still really liked him and were sorry to see him leave at the end of the summer .” “He’s one of a kind,” said Rodrigo. “And a great role model for the gay students at my school.” 77 Giannina gave Rodrigo a quick look, and my young colleague, catching her meaning, said. “We’d better start. Giannina wants to be in on this, and the baby may sleep for only an hour or so.” IN WHICH A YOUNG COUPLE AND TWO STAR-STRUCK OLDER LOVERS DISCUSS THE ORDINARY AND THE EXTRAORDINARY IN CONSTITUTIONAL ADJUDICATION AND A BETTER APPROACH ON THE PART OF THE WEST TOWARD ISLAMIC NATIONALISM “What I want to propose is simply stated,” he began. “I think I mentioned last time that my mechanism operated in other areas as well, and was not confined to war.” “I think you described it as a sliding scale,” prompted Giannina. “In some settings, it looks like a duality. But I gather you think it’s part of something broader.” “I do,” Rodrigo replied. “Consider how many areas are riddled with what we call exceptions. A general rule, such as that patients have the right to informed consent for medical treatment, turns out to contain an exception if the doctor thinks the situation is an emergency and you’ll die or do something drastic to yourself if not treated. And the same is true if telling you about the risks of treatment may cause you to reject it.”1 “That’s the so-called therapeutic exception,”2 Giannina said. “We studied that in torts.” “By the same token, the doctor needn’t disclose risks a reasonable patient wouldn’t consider material, even if they might be quite important to you.”3 “That’s the materiality exception,” said Giannina. “Informed consent isn’t the only area rife with exceptions,” Rodrigo continued. “Consider immigration law, which Gus taught recently . Usually the government cannot deprive you of your liberty or right to a livelihood without a hearing and good cause. But if you’re an immigrant, it can, based on secret evidence.4 And the government may change the rules without any input from people like you.” “That’s the plenary power doctrine,”5 I said. 78 TAMING TERRORISM “Right. And criminal law is full of the same sort of thing. In civics class, we’re taught that the police can’t enter your home or search your car without a warrant signed by a judge and a showing of good cause.6 But that rule is riddled with exceptions.” “Such as the good faith one,”7 Giannina said. “Or the plain-view rule...