Terrorism and the Constitution: Looking at the German Case

The U.S. Supreme Court reacted slowly to the constitutional questions raised by post–September 11, 2001, antiterror strategies. Many questions of constitutional law are still unanswered. There have been no rulings on the "special treatment" of detainees in the fight against terrorism. The court did not take the Masri case—of a German citizen abducted by the CIA and tortured in Afghanistan—or, so far, any other rendition case. There have been no decisions on wiretapping issues or other surveillance questions. When the Court issued its latest ruling on the Guantánamo detainees, in favor of habeas corpus rights, it revealed a deep internal cleavage. In one of the minority opinions, the justices supporting the ruling were accused of contributing to the killing of Americans. The ferocity of the conflict within the Court reveals a strong anxiety about the effects constitutional rights could have on the effectiveness of antiterror measures. On this view, the best way for constitutional courts to deal with anti-terror measures is to look the other way.