"Judicial Oversight of National Security and Intelligence Gathering"-- a synopsis of presentations from panel three of the ISCP's inaugural conference

Judicial Oversight of National Security and Intelligence Gathering-- a synopsis of presentations from panel three of the ISCP's inaugural conference, Constitutional Conflicts and the Judicial Role in Comparative Perspective 

*Prepared by Orly Rachmilovitz

Oren Gross (The University of Minnesota Law School):

The story in the context of security and emergency powers is familiar: extending government power, concentration of powers in the executive, contraction of individual rights and liberties. What do we make of it: is this problematic, is this permissible?

There are institutional questions, and process-based question, jurisprudential and legal theory questions. There are those who say that this is not problematic because, as a matter of process, the legally constrained executive is a historical artifact. Legal constraints are effectively meaningless, even unconstitutional. On the other hands, a civil libertarian perspective rejects the application of security versus liberty, supports institutional perspective and presents a view of joint action by the executive and the legislature to make decisions. Where do courts fit in? How do we assess government process and decision-making? Are courts likely to improve this process in emergency situations? There are those who think that courts must show deference. Others see courts as protectors of rights and assert that courts must be robust particularly in the face of emergency situations. So to what extent do we really believe that judicial review by non-political judges is relevant?

The experience of the United States and of Israel is that courts tend to go to war. Judges, must like politicians and society, want to win the war, especially when stakes are high. This is true for domestic and international courts.

The second point is the trade off and balancing tests. It is dominant in legal culture and has been invoked often in security versus rights debates. If you look at it from cognitive theories of decision-making, it is clear that when you balance security and liberty, those decisions are going to be biased, especially when conflicts are still going on and there is disadvantage for one in favor of the other. When the executive takes action, it is not a precedent that can be used later. Courts do make precedents, and their decisions can be used to extend to other contexts. Constitutional norms, written or unwritten, have a trans- substantive nature. What is reasonable and significance in judicial review is in direct relationship to the time of political events. The longer we are away from guns blazing, courts become more robust. Judges should use and exercise passive virtues. In the past, the Israeli Supreme Court basically stripped itself from any constraints to review military decisions. This is not good for the military or for the courts. It threatens the quality of performance of other branches and authorities because they are stripped from responsibility and the “moral judgments of history.”

Stephen Vladeck (American University Washington College of Law):

The American practice is the passive-aggressive virtues – there are some areas where federal courts exercise restraint and others in which they go further. Both are difficult to defend on political grounds. On the passive grounds, over the 14 years since the attacks of 9/11, courts have relied on ten procedural constraints to avoid getting to the merits, including: standing, mootness, absence of a cause of action, sovereign immunity, battlefield preemption (contractors), failure to name appropriate defendant, official immunity. Some of them are specific to national security. They are all amalgamations of doctrines that allow the government to prevail in national security cases.

There is a fairly latent judicial hostility to resolve such disputes. It is simply beyond the judicial ken and power to interfere. This is not a historical position, as federal judges until the cold war were more aggressive. Then the courts became more eager to defer to the government, and these precedents were used after 9/11, ignoring a more long-standing tradition of intervention.

Government application for surveillance, habeas petitions from Guantanamo and criminal prosecutions of terrorists are three cases less discussed in which courts ensure support for the government. They illustrate the competence of federal judges to resolve these cases and undermine claims that judges cannot be trusted. No privileged information has been leaked or revealed by judges or attorneys.

Deborah Pearlstein (Cardozo School of Law):

Are courts competent to hear questions of national security? I believe so. The traditional view is that institutional characteristics – the executive branch’s ability to act quickly and secretly – are essential to decision-making, and that since courts lack these as well as the expertise in national security they should not intervene. This view is overbroad: not all national security decisions involve secrecy or speed. Courts are constantly expected to adjudicate issues of national security (Are we at war? When did it begin?), and speedy decision-making hasn’t mattered as much.

We see secrecy’s relevance also in the context of Ebola. In the event of a biological attack it’ll look like a virus outbreak. Secrecy in discovering and addressing is the opposite of what you want and need or what the government is capable of exercising. So what is it about national security that secrecy might be a problem?

All this is an overly optimistic assessment of the government. In addition to the executive characteristics the government can also be entirely predictably ineffective. Such characteristics as insularity and self-preservation prevent outside review and protect ineffective or flawed operations.

Even when speed and secrecy are important, courts usually only engage after the initial decision has been made, so speed is less crucial. The central role of the court is to construct a rule after the fact for future cases when the decisions are being made in real time, and incentivize better decisions. Regardless of the time, the role of the court is not to mirror first instance decision-making. The role of the courts is not about repetitive analysis, but whether the rules were followed or whether the act was authorized. Otherwise we’d have a problem of redundancy and the decision-makers would become less careful because they trust each other to review, but effectively perform poorly because of this reliance. They shirk responsibility. Instead the courts should evaluate what decision-makers are doing and have an added value.

Samuel Rascoff (NYU School of Law):

There are two different audiences to be disaggregated. In United States and in Israel, courts are engaging in constraining an executive, but the executives are different in the two countries so you get two different kinds of adjudication. The Israeli Court actually takes aim at the national security executive (the head of the Shabak, or the head of the armed forces), while the United States Supreme Court addresses the political executive (the President qua Commander in Chief). It is a fundamentally different context. The granularity of the analysis is increased in Israel. Anyone who’s a national security lawyer needs to read the torture case, the targeted killing case, the cases on the wall, the early warning case. What you find is that these cases are deeply in the weeds. They are interventions that speak in precision and are articulate on national security. As a function of granularity you get rich and fully embedded opinions. So the cases in Israel are focused on the practice of national security.

In the United States the cases are about what the President of the United States decided. In Hamdi, the court rejected the President’s argument.

The issue of remedy is also significant: in the targeted killing case the remedy is structural. It goes to the actual practice of the military – how they pick a target, etc. Compare the remedy with that in Boumediene: yes there is habeas, now figure it out. It makes sense if you think of it as addressing a political executive and that the lower court needs to decide the details.

The consequences for national security are that there isn’t a single opinion by an American court where what was hanging in the balance was really a life or death issue in the past 14 years. But compare that to the Israel court in the early warning matter – that’s a court that’s actually grappling with real life and death consequences of its opinion. The amount of responsibility the Israeli Court is taking for its decisions is unparallel in the United States.

Gross, in response:

The way I see judicial review in life-or-death, emergency, is like porcupines making love – it should be done really, really carefully. The major value in a robust judicial review is the court doing this ex-post. Which courts are we looking at and what is the court of reference? When the court of reference is the United States Supreme Court with a limited docket and uses many doctrines but also can refuse to take a case without reasons, we may perceive robustness better. But when you have a court that stripped itself of any capability of saying no, or not yet, then the view is completely different. We heard several times views that are suspect of motivations and capabilities of the executive, whereas when we get to courts we think of them as high-minded and a-political. I’m not sure this is an accurate picture, particularly when in the United States the selection of judges is highly political, or that they are insular from rebuke. So judges are not necessarily raw politicians, but the distinction between politicians and judges needs more thought.

I don’t know about any other court where judges go into so much detail in real time as opposed to after the fact. This is not where the relative advantage of the court lies, but in the retroactive consideration.

Rascoff: Regarding normative view: I have admiration for the Israeli Supreme Court’s decisions under circumstances where it is mindful of the context. I would join panelists on the question of competence, I don’t know why courts would be competent on other issues (environment, health care, medical standards…) but they are uniquely incompetent when it comes to national security.

Vladeck: It’s worth realizing when we’re referring to the United States Supreme Court itself as distinguished from other federal courts. Many of the national security cases are by lower courts, and I think they actually address both the political executive and to the military. They also apply and affect real time and ex-post. We need to ask whether there is some reason a judge cannot adjudicate this, and I think the answer in the United States is no.

Pearlstein: I agree there is certainly a technical engagement in Israeli Supreme Court that is absent in the United States courts. But there’s a strange dynamic in the American cases that explains why you don’t see a technical engagement – the executive didn’t offer it, no reason offered by the executive of why something needs to be done in a certain way. The assertion has been of the executive that the courts can’t understand, so the level of the question was whether something is permissible on a more abstract level. So courts end up siding with experts. It would be fascinating to see how courts grapple with the details when they are presented.