By Sudha Setty* –
4 Harv. Nat’l Sec. J. 185 (2012)
Over a decade after the attacks of September 11, 2001, lawmakers, scholars, activists, and policy makers continue to confront the questions of whether and to what extent robust counterterrorism laws and policies should be reined in to protect against the abuse of civil rights and the marginalization of outsider groups. This Article uses political and critical race theory to identify areas of national security interest convergence in which political will can be marshaled to limit some national security policies.
Legislators act in their political self-interest—both in terms of responding to party forces and constituents—in casting votes that often give primacy to national security interests at the expense of civil liberties. Actions taken by legislators which are rights-protective in the national security context are largely predictable when understood as effects of both political realities and interest convergence theory. Lawmakers often will not act on the basis of civil liberties concerns, but will implement rights-protective measures only because those measures serve another interest more palatable to mainstream constituencies.
Although unmooring from deontological grounding creates numerous limitations as to how many rights-protective measures can be implemented on a long-term basis, interest convergence offers a limited opportunity for lawmakers and policy experts to leverage self-interest and create single-issue coalitions that can protect the rights of outsider groups abused by current national security policies.
* Professor of Law, Western New England University School of Law. J.D., Columbia Law School, 1999; A.B., Stanford University.