Po Jen Yap
Pacific Rim Law & Policy Journal
April 2015, Vol. 24, pp. 363-389
Introduction (excerpt): In the wake of the September 11th terrorist attacks ("9/11") and similar tragedies across the globe, governments around the world have responded by passing a slew of legislative sanctions that seek to combat this global national security threat. The United Kingdom's government, like many of its foreign counterparts, has frequently contended that, in times of national crisis, democracies must recalibrate their institutional processes and reinterpret their legal norms to accept more intrusive encroachments on personal liberty that would usually be considered unacceptable during "normal" times. The British judiciary, in particular the Supreme Court (and the Appellate Committee of the House of Lords), has also entered the fray as they are tasked to review and rule on the legality of several contentious governmental measures. However, as these judges sit at trial, they too also stand trial when their decisions are judged in the court of public opinion and are critiqued within the walls of academia.
Unsurprisingly, commentators have published a plethora of academic literature on how courts should address these legal challenges against governmental counter-terrorism efforts. However, this discourse on national security has been dominated by the assertions of two polarized factions. On one side, we have the "executive unilateralists" who argue that courts - especially during emergencies or periods of crisis - should generally defer to governmental determinations on national security. These scholars contend that delay and uncertainty would result from the judicial review of national security disputes and impose unacceptable costs on executive power. Furthermore, "judicial deference is both desirable and predictable, given the high stakes and the judges' limited information and competence." On the other side, we have the civil libertarians who insist that judges should never acquiesce to governmental intrusions on human rights, even in times of public emergencies, and that courts must be vigilant and provide robust oversight over state action at all times. They believe that public bodies tend to overreact and that "the government's own assessment may be colored by fear of the electoral response and - less charitably - by calculations of electoral advantage," such that it is vital for the courts to subject the assertions of the executive to "searching examination."
A central purpose of this article is to show why both opposing, strident views are normatively untenable and unsustainable, and why it is unsurprising that neither viewpoint has been accepted in practice by the House of Lords and its succeeding body, the Supreme Court (hereinafter referred to collectively as "the Court") in the post-9/11 cases. It is my contention that the underlying normative assumptions of scholars in both camps are premised on a variant of the "nirvana fallacy." Civil libertarians generate a best-case scenario for rigorous judicial oversight of executive action during emergencies and compare it to the worst-case scenario for executive action, while the reverse holds true for executive unilateralists. Realistically, judges on the Court are insulated from the political winds and are arguably more impartial in reviewing challenges to governmental action. However, they are comparatively more limited in their access to the requisite national security information and lack the training to make the predictive risk assessments on the necessity of national security measures. On the other hand, while it is equally true that, in times of crisis, the executive branch possesses the "speed, secrecy, flexibility, and efficiency that no other governmental institution can match," the need to assuage public fear and moral panics may distort the objectivity of the executive's assessments. The main trade-off in the institutional design of security policy is between freedom from bias and information.
This article contends that the Court has been generally cognizant of the institutional advantages and limitations of its office when adjudicating national security disputes, and has not succumbed to criticisms. Instead, there has been an inverse correlation between the degree of judicial deference displayed to the executive on national security matters and the information made available to the Court since 9/11. In other words, the intensity of the judicial oversight over various counter-terrorism measures increases when an emergency wanes, and the Court receives credible information that the impugned governmental measures are ineffective or unnecessary in addressing the perceived national security threats. As time passes, the Court often acquires more information, thereby narrowing the epistemic gap between the judges and the executive. Conversely, where the Court was not privy to the intelligence on which executive anticipatory risk-assessments were based, and where the costs of judicial errors were particularly high, the judiciary generally erred on the side of caution and deferred to the executive's national security determinations.
This article's central argument is that there exists an inverse relationship between the amount of information the Court has, and the level of judicial deference it affords the government.... Full text available on LexisNexis.