A Legislação Anti­terrorista nos Estados Unidos: um Direito Penal do Inimigo?

Abstract

The Bush administration has made the fight against terrorism a top priority of its security and justice policy. To what extent have the constitutional liberties and fundamental freedoms been traded for national security? This article answers this by analyzing the USA Patriot Act, a major piece of legislation of Congress amending more than 15 federal laws, from money laundering to immigration. Furthermore, this article deals with the presidential emergency executive orders on the terrorist list and smart sanctions and on the establishment of military committees for enemy combatants. Finally this contribution deals with the secret orders of the president, concerning domestic spying and the extraordinary rendition programme, by which enemy combatants are abducted in foreign countries and transferred to secret detention centers. Many aspects of the special anti-terrorist legislation in the USA have been tested by judicial action before the Courts, delivering several US Supreme Court decisions on the status of enemy combatants, on the legality of the military committees, on the absence of habeas corpus, etc. Finally, this article draws attention to the response of the legislator to decisions of the Supreme Court, especially on the Military Commissions Act of 2006. The balance between civil liberties and security is the result of a tough struggle between the trias politica. The result is not only important for the field of counterterrorism but also for the survival of the rule of law in times of declared emergency.