“The National Security Case for Judicial Review”- SRL Leaders write for “Lawfare”
Multiple Society for the Rule of Law Board and Charter Members recently joined in submitting a Lawfare article championing the importance of judicial review in American National Security. The authors include SRL’s Board Secretary Peter Keisler, Board Treasurer Stuart Gerson, Advisory Council Member Nuala O’Connor, and Charter Members Nicholas Rostow and Paul Rosenzweig.
They express concern that national security is being invoked to justify an ever-widening concentration of executive power and that federal courts are increasingly being asked to show deference to these claims. The authors argue that judicial review of national security decisions upholds the integrity of our constitutional democracy, strengthens the legitimacy of our defense policies, and incentivizes adherence to ethical and robust decision-making processes in the executive branch.
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.
Read the full article here.