National Security and Property: The War on Terrorism as Mid-Wife to Changes in Ownership

Abstract

Many have noted that the war on terror has driven a wedge between security needs and civil rights, yet the consequences of this war for property rights have received little attention. This paper explores the conditions under which private property rights are suspended despite their central place in the constellation of values for which the war on terror is fought. These conditions are exceptional--states of emergency in which governments amend their own rules, including normal protections for property. Focusing on the Department of Homeland Security (DHS), the principal institutional offensive against terrorist threats within the United States, I examine four DHS program areas for their property-related impacts. These impacts are direct, through eminent domain, as well as indirect, through the federal preemption of the police power historically reserved to state and local governance. The retreat of strong property rights long viewed as sacrosanct—referred to here as post property--does not apply evenly to all property owners and signals an important way that states of emergency can redistribute property and related wealth.