New law review article: Colloquy Essays, “The Bin Laden Exception”

Erik Luna, Colloquy Essays, The Bin Laden Exception:

ABSTRACT—Osama bin Laden’s demise provides an opportune moment to reevaluate the extraordinary measures taken by the U.S. government in the “war on terror,” with any reassessment incorporating the threat posed by al Qaeda and other terrorist organizations. Some modest analysis suggests that terrorism remains a miniscule risk for the average American, and it hardly poses an existential threat to the United States. Nonetheless, terrorism related fears have distorted the people’s risk perception and facilitated dubious public policies, exemplified here by a series of programs implemented by the Transportation Security Administration (TSA). Among other things, this agency has adopted costly technology and intrusive pat downs to screen airline passengers with little evidence that the terrorist risk has been meaningfully and efficiently reduced as a result. The TSA regime also clashes with core constitutional values and decent understandings of the Fourth Amendment. To date, however, the courts have been deferential to the government. Although the decisions rehearse established exceptions, they are indicative of an entirely new constitutional exception grounded in irrational fears of terrorism.

An earlier version of this Essay was published in the Northwestern Uniersity Law Review Colloquy on February 21, 2012, 106 NW. U. L. REV. COLLOQUY 230 (2012), http://www.law.northwestern.edu/lawreview/colloquy/2012/3/LRColl2012n3Luna.pdf.