The Rise in National Security Cases Has Not Changed the Role of the Court, Experts Say

Just 10 years ago, there were so few national security court cases that they could fit on a single Web page. Now there are thousands, according to Deborah Pearlstein, assistant professor of law at Benjamin N. Cardozo School of Law, who spoke during an American Bar Association Standing Committee on Law and National Security conference panel.

“You couldn’t begin to find a page on the Web like that now, not because the cases no longer exist, but because there are so many that the task of aggregating is incredibly difficult, if not impossible,” Pearlstein said.

The rise in cases can be attributed to the post-9/11 world. Since the terrorist attacks, the courts have increasingly engaged in national security issues and heard challenges of the constitutionality of new laws such as the Foreign Intelligence Surveillance Act and the revisions made to laws such as the War Crimes Act.

Despite the number and the complexity of national security cases appearing before judges over the past decade, the courts’ role has remained consistent with their constitutional duties, panelists agreed.

“The Constitution gives judges no role in national security at all,” said James Robertson, a retired judge of the U.S. District Court for the District of Columbia. “It is Congress that has the duty to provide for the common defense of the United States.”

When reviewing national security cases, judges must understand the daily roles of the executive and legislative branches when creating laws, added Brett M. Kavanaugh, a judge from the U.S. Court of Appeals for the District of Columbia.

“Courts have a role that is sensitive to what is going on on a day-to-day level,” Kavanaugh said. “Judges don’t start their day with a report on the latest national security threats. We need to recognize the role that members of Congress and the executive branch have.”

In addition, judges often use deference on cases that fall outside of their authoritative scope.

“What we’re really talking about when we raise this topic is trying to calibrate the extent to which the judiciary defers or does not defer to the elected branches,” said Robert Chesney, professor of law at the University of Texas at Austin School of Law.

Despite the historical use of deference by judges, the executive branch could expect the courts to weigh in on cases of national security more in the future, Pearlstein said.