This chapter does not focus on the common-law or international doctrines of necessity but discusses the family of justificatory arguments that arise within liberal constitutionalism to the effect that “necessity knows no law.” It analyzes the constitutional norms that fail to guide and constrain the choice of action through an analysis of what is appropriate. It explores how constitutional norms always apply as unavoidably normative constitutional questions during an emergency. The chapter also looks into post-9/11 counterterrorism practices of surveillance, detention, interrogation, and targeted killing. It observes the scope of the argument that transcends specific 9/11 terrorist practices in order to encompass the structure of constitutional thought of which policy choices arise.
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