The National Security Case for Judicial Review

(Suzanne Spaulding, John Bellinger, Mary DeRosa, Stuart Gerson, Glenn S. Gerstell, Peter Keisler, Robert Kugler, Paul Michel, Nuala O’Connor, Liam O’Grady, Philip Martin Pro, Paul Rosenzweig, Nicholas Rostow, Jeffrey H. Smith, Bruce Swartz, Kenneth Wainstein – Lawfare) The executive branch is increasingly asserting broad authority based on national security to justify a wide range of actions. As a result, federal courts are more frequently required, in the face of complex and conflicting precedents, to determine the degree of deference due to those claims. As these claims are assessed, we, former officials with national security experience in Republican and Democratic administrations and in the judiciary, thought it important to emphasize that, while there often are valid constitutional considerations in these cases, judges have demonstrated competence to consider sensitive and complex issues of national security. Appropriate judicial review strengthens national security, and there are risks inherent in undue deference. Presidents of both political parties have previously made demands for deference, and judicial deference to the executive branch on core issues of national security is often appropriate, given the president’s role in foreign policy and as commander in chief. It is also the case, however, that review by the courts of national security claims made by the executive branch can be essential to prevent abuse of power. Moreover, ensuring that assertions of national security powers have factual and legal support and reflect appropriate processes often leads to wiser decisions and more credible outcomes. Public acceptance of executive actions as legitimate is strengthened by the knowledge that they are subject to meaningful judicial review, which helps sustain support for those actions. Judicial review reaffirms American commitment to the rule of law and judicial independence, reflects the system of checks and balances designed to preserve our democracy, and reinforces America’s ability to garner support from other countries. In short, appropriate judicial review makes us stronger at home and abroad. – The National Security Case for Judicial Review | Lawfare