In the wake of the September 11, 2001, terrorist attack, National Courts faced a major challenge to their authority. Alarmed over the potentially devastating effects of global terrorism, national governments sought to increase restrictions on rights and liberties that they perceived as potentially facilitating terrorist acts or impeding counterterrorism measures. National executives insisted on broad, exclusive discretion in shaping and implementing these constraints as they saw fit, based on the claim that the executive holds a relative advantage over the other branches of government in assessing the risks of terrorism and in managing those risks. The post -9/11 global counterterrorism effort effectively united national security agencies throughout much of the West. Executive branches began collaborating directly with one another and indirectly through a web of formal and informal international institutions. The central formal collective effort was based on the authority of the UN Security Council; the more informal efforts ranged from the activities of such institutional entities as the Proliferation Security Initiative (PSI) and the Financial Action Task Force (FATF), to government-to-government exchanges, to complicity with illegal practices such as extraordinary renditions and secret prisons.
Most legislatures submitted to these measures without demur. Far-reaching legislative changes, hurriedly introduced in most democracies in the weeks and months following the Al-Qaeda attack, sailed through legislatures with little public debate or scrutiny (nota de subsol 51: In some countries, this legislative process was brief and did not encounter any significant opposition. Bills were passed within a few weeks or days (or even hours in the case of Germany) of the September 11 events). The immediate shock of 9/11 led many to view the basic principles of due process, which are shaped by the preference of democratic societies to err on the side of liberty, as entailing unacceptable risks. This wave of acquiescence to national political leaders’ claims to absolute discretion in acting to guarantee national security swept the courts as well.
Eyal Benvenisti, George W. Downs
The Emergence of Interjudicial Cooperation among National Courts în Between Fragmentation and Democracy: The Role of National and International Courts, Cambridge University Press, 2017, la pp. 123-4)