In my third and final post in our exchange, Dick, I'd like to shift over to the subject of judges. At a talk you gave recently at Boston University at a symposium we both attended, you reflected on what you termed “open spaces,” those seams in the law where neither text nor precedent commands a result. Your point (if I recall correctly) was that it is in these spaces where real "judging" takes place. In these spaces it is reasonably possible for conscientious and highly responsible judges to reach different outcomes, and in these spaces judges inevitably bring to bear their moral values, institutional preferences, personal ideologies, and emotional dispositions. In these spaces it matters a lot who the judge is.
Viewed from the perspective of the entirety of the law, these open spaces occupy only a tiny fraction of all the legal issues that could conceivably arise, but they are where the action is. In the specific realm of national security, however, and particularly in the realm where the national security and civil liberties intersect, I suspect that these spaces are relatively vast. This is so because legal conflicts between the national security and civil liberties arise infrequently. Thus, when judges are asked to reconcile the civil liberties with the national security, they often find themselves adrift in one of these spaces.
A recent example concerns the government’s decision to close deportation proceedings after September 11. Do members of the press and public have a constitutional right to attend such proceedings, or may the government shut them off from public view? The Supreme Court has never directly addressed this question and its precedents do not dictate any particular result. The Court’s decisions suggest that judges should consider such factors as traditional practice, the value of openness to the proceedings, the importance of the government’s interest in confidentiality, and so on. Not surprisingly, the two courts of appeals that addressed this question reached diametrically opposite results. Both were reasonable.
Justice Jackson once described the form in which these questions usually reach the courts: “Measures [ordinarily] violative of constitutional rights are claimed to be necessary to security, in the judgment of officials who are best in a position to know, but the necessity is not provable by ordinary evidence and the court is in no position to determine the necessity for itself. What does it do then?”
One sensible way to approach such questions – if judges are to avoid the otherwise highly subjective exercise of deciding based entirely on their personal values, preferences, attitudes, ideologies, and dispositions, is to define – in a lawyer-like way – appropriate presumptions with which to approach the decision making process. Logic, for example, suggests that in dealing with conflicts between the national security and civil liberties judges should start with a healthy dose of deference to military and executive officials. This seems sensible for several reasons.
First, because individual judges have relatively little experience with national security matters they do not bring a depth of understanding to these disputes. Such cases arise rarely, and judges are relative novices when it comes to assessing the possible national security implications of their decisions. Second, the stakes in such cases may be very high. Unlike most legal disputes, in which an erroneous judicial decision will have only modest consequences and is usually correctible after-the-fact (if not for the parties, then at least more generally), the potential consequences if a judge is wrong in a case involving the national security may be truly catastrophic. Third, for institutional reasons judges should be reluctant to second-guess military and executive officials in such cases because if they err they will harm not only the national security but also the long-term credibility and authority of the judiciary.
Not surprisingly, then, throughout the twentieth century judges have generally followed the logical course when dealing with conflicts between civil liberties and the national security. They have presumed that the actions of military and executive officials are constitutional when they act in the name of the national security. The three most dramatic twentieth-century clashes between civil liberties and the national security neatly illustrate this approach. The Court upheld all of the government's prosecutions of dissenters during World War I; it upheld the internment of more than 110,000 individuals of Japanese descent during World War II; and it upheld the prosecution and blacklisting of alleged "subversives" during the Cold War.
And therein lies the problem, for we have come to recognize that in each of these situations the Court was snookered. In each instance, the Court gave deference to judgments that history has proven to be misguided, at best. On the other hand, there is not a single instance in which the Court has decided a case against the government that has seriously harmed the national security. In short, the lesson of history is that the Court has bent over too far to accommodate the often exaggerated claims of military and other executive branch "experts." The logical presumption -- give them the benefit of the doubt -- has worked out quite badly in practice. What to do then?
My own sense is that since roughly 1957 the Supreme Court has figured this out and thus tended to be much less deferential to the government in such conflicts. Certainly, the Court took a more aggressive stance in the second-half of the Cold War, in the Vietnam War (e.g. the Pentagon Papers case and the Kieth case, which rejected the executive's claim that it could engage in national security wiretaps without probable cause and a warrant), and in its 2004 decisions in Rasul and Hamdi, which rejected the positions of the Bush administration. In these instances, the Justices declined to give the president a blank check, and insisted on serious justification and accountability. The Justices have learned the lesson of history, they do not wanted to be remembered like their predecessors in such conflicts, and they have significantly shifted the presumption. The government now bears the burden of proof in these cases, and the burden is high.
Personally, I think this is a healthy trend. If judges are to be pragmatic in meeting their responsibilities in these open spaces of the law when civil liberties and national security issues are at stake, they have to understand that military and executive officials have many incentives to demand unnecessary restrictions of civil liberties. Of course, I assume that, as a judge, you must agree that judges should be eternally vigilant against such national security excesses, right?