Supreme Court Nominations

Sotomayor Hinted at Legal Concerns over Terrorism War in 2003 Lecture

Judge Sonia Sotomayor provided hints that she has concerns about some aspects of the war on terrorism—including expanded government wiretap authority—during a 2003 law school lecture.

The New York Times examined the speech (PDF) and some of Sotomayor’s rulings on government actions taken in an effort to combat terrorism. The Supreme Court nominee’s views on national security issues are of particular importance because many of the high court’s rulings in the area have been decided on 5-4 votes.

Speaking to Indiana University law students, Sotomayor noted provisions of the USA Patriot Act that gave the government more authority “to impose nationwide wiretaps with little judicial supervision” and to monitor Internet use.

“Whether and how these statutes will be challenged in court is difficult to discern, but suffice it to say that traditional Fourth Amendment law does not permit searches and seizures without particularized suspicions of illegality,” Sotomayor said.

Sotomayor also remarked on other legal issues in the terrorism fight. She said trying suspects in military tribunals raises concerns because tribunals don’t have juries, aren’t bound by the exclusionary rule, can use evidence without disclosing it to the defendant, and decide cases using a different burden of proof. But she did say precedents and current law allow the government to give enemy combatants different legal rights than accused criminals.

She also commented on a requirement that citizens of certain countries must register when visiting the United States, saying it raised “complicated questions of equal protection.” She also mentioned “the issue of racial profiling that arose in the government’s interview of 5,000 Mideastern resident aliens shortly after Sept. 11.”

“History will judge our democracy by how we balance the security threat to us with our allegiance to constitutional principles and notions of ordered liberty,” she told the students, quoting from a speech by FBI director Robert Mueller.

Also see:

Fox News: “New Documents Shed Light on Sotomayor’s Thoughts About Sept. 11 Attacks”

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