When it comes to cases involving grave matters of national security, commentators split on the courts' role. Some think the judiciary should be heroes, bravely swooping in to protect civil liberties when passions run highest. Others think that courts should show great deference to the executive, who is in the best position to understand the scope and magnitude of the security threat. Still others advise the court to take a minimalist approach to whatever it decides, viewing the occasion of a security breach as the wrong time to experiment with sweeping opinions. But what they all seem to agree is the notion that there is something different about the judicial role in cases involving national security. And this presumption, that national security somehow presents an exceptional case in the realm of judicial behavior, is what Professor Aziz Huq seeks to undermine in Chicago's latest WIP talk.
Professor Huq first identifies five prominent theories of the judicial role in national security cases. The first is that courts exhibit "social learning", identifying and discarding erroneous security policies over time. The second is the heroic model, whereby judges are the final guardians of civil liberties, standing boldly against democratic pressures. The third, generally opposite of the second, is the executive accommodation model, by which courts are generally deferential to executive policy judgments on the theory that security matters are a quintessentially executive matter. The fourth is a view of judicial minimalism, positing that courts should be very wary of making drastic changes in national security law due to the particularly sensitive nature of subject. And finally, there is the model of "bilateral institutional endorsement", which seeks to involve, to the greatest extent possible, the other two branches of government when deciding to make any changes to the status quo. While some or all of these theories have counterparts related to judicial behavior more generally, each can be uniquely applied to the national security context. For example, while one might generally believe courts should be minimalist in their adjudicatory decisions, it is also quite possible to not subscribe to that belief as a general matter, while still thinking it compelling logic within the particular arena of national security. The "exceptional" quality of these theories is their putatively superior explanatory power in national security compared to "normal" judicial decisions.
The first problem with the national security exceptionalism hypothesis is that none of these five theories seem to do that great a job of explaining how courts actually behave in national security cases. For example, there is little evidence that the court "learned its lesson" (as the social learning model would suggest) from the nearly universally repudiated Korematsu decision, when in Iqbal it was cavalier, to say the least, about the possibility of bias and prejudice precipitating ill treatment towards a segment of the population identified with America's attackers. Likewise, the distribution of outcomes in national security cases is not so polarized as to warrant giving descriptive force to either the highly deferential executive accommodation theory, or the extremely interventionist heroic model. And while it might be said that these theories, though not explanatory on their own, might be so in the aggregate, this seems to beg the question -- particularly given that at least some of the theories (such as the heroic versus accommodation models) are polar opposites of each other.
Of course, on its own this does not show that national security is not an exceptional case; all it demonstrates is that the predominant theories of national security exceptionalism are inadequate. However, Professor Huq continues to observe that to the extent we do observe patterns in the resolution of national security cases, they seem to track broader, transsubstantive trends in the field of public law. For example, the hesitancy of courts to intervene against security decisions at the front end is perfectly consistent with the broader thrust of American law -- in general, judicial intervention aimed at preventing constitutional violations prior to the fact is the exception and not the rule, particularly in matters (such as the 4th Amendment context) where public or official safety is an important value. The broad-based decision strategies and doctrines the courts have developed for law "in general" are perfectly adequate to account for judicial behavior in the national security context as well--there is nothing "exceptional" about it.