With the current controversies over the NSA's surveillance programs, I want to return to broader issues about how to think about the role of courts in the national-security area.
In this area, government typically tends to be exceptionally resistant to judicial review of constitutional challenges. Moreover, American constitutional law's tight requirements that limit courts to adjudicating only actual "cases and controversies" offers many bases, such as standing doctrine, on which government can legitimately argue that courts cannot or should not reach the substantive merits of these challenges. From this just-completed Term of the Supreme Court, a clear example is the Court's 5-4 decision in Clapper v. Amnesty International, here. Holding that it had no power to address the substantive issues, the Court dismissed a challenge to parts of the 2008 amendments to FISA that enabled the government to engage in certain foreign intelligence surveillance, with FISA court approval. This particular mode of surveillance targets non-U. S. persons located abroad -- without having to demonstrate, as in the past, that the target of the electronic surveillance is a foreign power or agent of a foreign power.
More broadly than any one particular issue or case, one of the most remarkable features of our political and legal system since 9/11 is how few of the central issues the courts have addressed on the merits -- despite the novelty of many of the legal questions and the high stakes involved. Considerable uncertainty still remains about the proper scope of the Authorization for the Use of Military Force. No court has addressed the circumstances under which targeted killings are lawful. Many issues about the proper procedures to be used for trials before military commissions, and what charges can validly be brought there, remain unanswered. And as Clapper illustrates, courts have had nothing to say about the scope of various surveillance programs.
Typically, divisions over judicial review in this area have a characteristic ideological orientation. Civil libertarians, hoping the courts will invalidate programs in the name of individual rights, press courts to reach the merits. More "conservative" national-security proponents, including the government, argue against a judicial role. It is no surprise that Clapper, and cases like it, generate 5-4 decisions that put the conventionally-labelled "conservative" Justices against the "liberal" ones. To those who resist judicial review, the fear is that once courts get into the business of resolving national-security issues on the merits, they are too likely to impose rights-constraints on otherwise effective national-security programs.
But two very significant benefits to government policy in this area can also result from judicial review. Over the many years since 9/11, I have come to wonder more whether our system calibrates these potential benefits and costs well.
First, government actors have a need for legal clarity, particularly in national-security areas where the legal questions are novel and the stakes of guessing wrong particularly high. In the absence of more definitive court guidance, government lawyers and policymakers have spent a staggering number of hours trying to anticipate what courts might conclude is the valid scope of the government's power to detain, or to use military trials, and similar questions. In many contexts, a significant element in what government actors need is simply legal clarity; knowledge of where the lines lie between the permitted and the forbidden can help government actors figure out how best to reach their legitimate goals. Surely there is something not fully functional about a system that requires a decade's worth of guesswork, and all the resources involved, about exactly where the legal boundaries lie.
Second, judicial decisions do not just call a halt to government action, they also legitimate it. A definitive legal ruling that some controversial program is lawful can diminish (even if not eliminate) some of the power of the charge of illegality Those resistant to judicial review, including the government, can too easily lose sight of this power of courts to legitimate government action. Many of us on Lawfare have argued for years that government needs to embrace more transparency to help explain and legitimate its national-security policies. Judicial review can be seen as part of that transparency effort.
By way of contrast, the Supreme Court of Israel has eliminated virtually all procedural obstacles to judicial review, including of national-security issues -- to an extent that would be shocking to those familiar only with American judicial practice. But one of the benefits is that the Israeli Court has issued the most important judicial decision in the world on the lawful parameters of targeted killings, and the Israeli government now has clarity about the lawful scope of any such actions.
None of these comments is designed to make a starry-eyed, overly idealist case for judicial review. Courts can, indeed, make mistakes. Judicial review must not compromise legitimate national-security needs, such as protecting confidential sources and methods, as well as not compromising necessarily covert programs. And some of the constraints on American judicial review are deeply rooted in constitutional law and history, while others are more matters of prudential limits.
But I want to call more attention to that the American practice of narrow, "case and controversy" judicial review is an outlier among courts in many other major democracies. And there are some significant costs -- from the perspective of the government itself, not just those who seek to challenge government action in the courts -- to a structure of judicial review that still leaves us, more than a decade after 9/11, with so little legal guidance from courts on so many novel, essential, and continuing issues at the center of counter-terorism law.