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Courts Have Been Hiding Behind National Security for Too Long

Racial and religious minorities have suffered from judicial deference to post-9/11 claims of national security.

  • Shirin Sinnar Shirin Sinnar
August 11, 2021
View the entire 9/11 at 20 series

This essay is part of the Bren­nan Center’s series explor­ing new approaches to national secur­ity 20 years after 9/11.

In 2018, the Supreme Court upheld the Trump admin­is­tra­tion’s infam­ous travel ban exclud­ing citizens from several predom­in­antly Muslim coun­tries. For two years, Donald Trump had demon­strated profound reli­gious animus against Muslims, prom­ising to impose a “complete shut­down” on Muslim immig­ra­tion and prais­ing stor­ies of shoot­ing Muslims with bullets dipped in pig’s blood. Despite the strik­ing evid­ence of reli­gious bias, the Court sustained the ban because the govern­ment offered a facially neut­ral explan­a­tion for the policy. The Court emphas­ized that its “inquiry into matters of entry and national secur­ity is highly constrained” and that the exec­ut­ive’s factual judg­ments on national secur­ity matters deserved defer­ence.

Although Trump’s overt hostil­ity toward Muslims made the travel ban notori­ous, Trump v. Hawaii fits within a larger pattern of courts defer­ring to exec­ut­ive branch claims of national secur­ity — claims that reached a fever pitch in the years after 9/11. During the George W. Bush admin­is­tra­tion, legal comment­at­ors celeb­rated the Supreme Court’s initial will­ing­ness to curb exec­ut­ive power in Guantá­namo detainee cases from Hamdi v. Rums­feld to Boumediene v. Bush. But the Supreme Court’s over­all response to the 20-year “war on terror” reflects judi­cial abdic­a­tion more than inter­ven­tion. The result, in many cases, has been that victims of human rights viol­a­tions receive no acknow­ledg­ment of harm, while secur­ity agen­cies remain uncon­strained by legal preced­ent or the fear of judi­cial rebuke.

The core justi­fic­a­tions for “national secur­ity defer­ence” are unsound. Moreover, both the implic­a­tions and origins of these ideas are racially fraught: the effects of national secur­ity defer­ence fall largely on perceived racial and reli­gious outsiders, while racial consid­er­a­tions shaped the very form­a­tion of the doctrines and help sustain them today. With the Supreme Court ideo­lo­gic­ally commit­ted to national secur­ity defer­ence, reform will require congres­sional action and broader public pres­sure.

A pattern of defer­ence

Not a single doctrine but a set of ideas, national secur­ity defer­ence mani­fests in legal decisions that limit a court’s author­ity to hear a case or partic­u­lar claims, reduce the legal stand­ard of review for a claim, or defer to the exec­ut­ive’s conclu­sion on a factual ques­tion.

The first category includes what are often thought of as justi­ciab­il­ity limit­a­tions. In Clap­per v. Amnesty Inter­na­tional USA, for example, the Supreme Court ruled that legal and human rights groups lacked stand­ing to chal­lenge an elec­tronic surveil­lance program because they could­n’t show that the govern­ment would neces­sar­ily surveil them. Although the decision relied on stand­ing doctrine that in theory applies in all cases, the national secur­ity posture of the case clearly affected the analysis. The Court noted that it had often refused to find stand­ing when review­ing “actions of the polit­ical branches in the fields of intel­li­gence gath­er­ing and foreign affairs,” and that the discov­ery of inform­a­tion required to prove stand­ing would risk inform­ing terror­ists whether they were under surveil­lance.

In Ziglar v. Abbasi, the Supreme Court simil­arly refused to allow post-9/11 immig­rant detain­ees to sue high-level govern­ment offi­cials for damages for asser­ted consti­tu­tional viol­a­tions. Among other reas­ons, the Court found that “special factors” weighed against recog­niz­ing an implied damages remedy where a legal chal­lenge would require an “inquiry into sens­it­ive issues of national secur­ity.”

In the second category, courts hear a case but apply a leni­ent stand­ard of review because the case implic­ates national secur­ity (and often immig­ra­tion or foreign affairs, as well). This category is exem­pli­fied by Hawaii v. Trump, where the Court refused to consider whether the govern­ment’s stated justi­fic­a­tion for the travel ban was the real reason, despite the litany of state­ments by Trump suggest­ing anti-Muslim animus. The decision sugges­ted that, at least in the context of entry to the United States, even overt reli­gious or racial hostil­ity to a group of noncit­izens would be ignored so long as federal agen­cies devised a plaus­ible secur­ity pretext.

In the third category, courts claim to apply a conven­tional legal stand­ard, but zeal­ously defer to the govern­ment’s factual find­ings. Thus, in Holder v. Human­it­arian Law Project, the Court upheld a stat­utory ban on provid­ing mater­ial support to desig­nated foreign terror­ist organ­iz­a­tions, even as applied to speech support­ing their lawful activ­it­ies, partly because it deferred to the govern­ment’s factual judg­ment that all contri­bu­tions to terror­ist groups facil­it­ate their viol­ence. The Court declared that judges lack the compet­ence to second-guess determ­in­a­tions on evolving national secur­ity threats — an asser­tion that has since been frequently cited by lower courts.

The Court appears poised to further insu­late national secur­ity activ­it­ies from judi­cial scru­tiny. It recently agreed to hear two cases in which the Ninth Circuit Court of Appeals partly rejec­ted the govern­ment’s argu­ment that the “state secrets” doctrine shiel­ded secur­ity agen­cies or their contract­ors — the first involving a Guantá­namo detain­ee’s legal chal­lenge to CIA torture in a foreign court, and the second chal­len­ging FBI surveil­lance of South­ern Cali­for­nia Muslims. The state secrets doctrine origin­ated as a basis for the govern­ment to protect partic­u­lar inform­a­tion from disclos­ure in litig­a­tion, but in recent decades, it has trans­formed into a justi­fic­a­tion for courts to refuse to hear cases at all.

Across these decisions, courts often cite similar rationales for national secur­ity defer­ence: the notion that foreign affairs or national secur­ity decisions are consti­tu­tion­ally alloc­ated to the exec­ut­ive, the belief that polit­ic­ally account­able actors should decide high-stakes ques­tions, the idea that courts lack expert­ise in the secur­ity arena, or the fear that adju­dic­a­tion could reveal national secur­ity secrets.

Legal schol­ars have vigor­ously chal­lenged these ideas. Deborah Pearl­stein, Robert Ches­ney, and Aziz Huq have drawn on organ­iz­a­tional theory, social psycho­logy, and polit­ical science to critique the idea that the exec­ut­ive branch has singu­lar expert­ise in the national secur­ity arena. Others have argued that the justi­fic­a­tions for excep­tion­al­ism neither apply to all foreign rela­tions or national secur­ity cases nor categor­ic­ally distin­guish such cases from other areas. And I have argued that courts can address secrecy concerns through tailored proced­ural exper­i­ment­a­tion rather than broad defer­ence.

The racial dimen­sions of national secur­ity defer­ence

Beyond these reas­ons to ques­tion national secur­ity defer­ence, the racial dimen­sions of defer­ence present a power­ful reason to chal­lenge the concept. First, the effects of national secur­ity defer­ence gener­ally fall hard­est on racial, ethnic, and reli­gious communit­ies who are most likely to be iden­ti­fied as secur­ity threats.

During World War II, the Supreme Court invoked defer­ence to milit­ary judg­ments in uphold­ing curfew and exclu­sion orders that led to the intern­ment of over 110,000 Japan­ese Amer­ic­ans. Since 9/11, court decisions deny­ing redress on national secur­ity grounds have most often affected Muslims, both within and beyond the United States.

While the Supreme Court once theor­ized that courts should apply greater scru­tiny to cases involving minor­ity communit­ies facing preju­dice — because polit­ical processes would least protect them — national secur­ity defer­ence does the very oppos­ite. It strips protec­tion from the groups most likely to be stig­mat­ized and least likely to be suppor­ted within major­it­arian polit­ical processes.

The reason that national secur­ity defer­ence espe­cially harms racial or reli­gious minor­it­ies is not that these groups happen to present the greatest threat. Rather, race has always shaped who we view as the “nation” to be protec­ted, how we identify threats to secur­ity, and the policies we adopt at home and abroad. The Supreme Court used to state this expli­citly. In the 1889 “Chinese Exclu­sion Case,” for instance, the Court advoc­ated defer­ence to the polit­ical judg­ment that non-white foreign­ers presen­ted an inher­ent secur­ity threat: “If… the govern­ment of the United States …. considers the pres­ence of foreign­ers of a differ­ent race in this coun­try, who will not assim­il­ate with us, to be danger­ous to its peace and secur­ity, their exclu­sion is not to be stayed.”

In our own time, race explains to a signi­fic­ant degree why the United States developed dispar­ate legal regimes for “inter­na­tional” and “domestic” terror­ism — two categor­ies of threats defined less by geography than by the iden­tity and ideo­logy of those suspec­ted. Muslim Amer­ic­ans acting alone inside the United States are categor­ized as inter­na­tional terror­ists if they merely share the beliefs of over­seas terror­ist groups, while white suprem­acists are considered “domestic terror­ists” (when they are considered terror­ists at all) despite asso­ci­at­ing with or belong­ing to organ­iz­a­tions with wide­spread over­seas pres­ence. Race shapes the very category of people and issues that are defined as threats to national secur­ity — and there­fore the category of cases that trig­ger judi­cial defer­ence.

Second, national secur­ity defer­ence not only disad­vant­ages groups considered racial outsiders, but at least some of its intel­lec­tual and juris­pru­den­tial roots can be traced to racist impulses. Our modern national secur­ity state is usually considered to be the outgrowth of World War II and beliefs about U.S. vulner­ab­il­ity, secur­ity, and expert­ise that emerged at the time. But the origins of national secur­ity defer­ence go back much further, to ideas on foreign affairs and immig­ra­tion that eman­ated from a racist and nativ­ist Supreme Court. Legal scholar Sarah Clev­e­land has argued that during the late 19th century, the Supreme Court developed the idea that the federal govern­ment has inher­ent powers over foreign affairs that are inde­pend­ent of any consti­tu­tional grant of author­ity and largely uncon­strained by judi­cial review. She argued that the Court estab­lished this notion in three sets of cases in order to support U.S. efforts to exclude Asian immig­rants (as in the “Chinese Exclu­sion Case”), dispos­sess Indian lands, and acquire territ­ory abroad.

While the intel­lec­tual gene­a­logy of national secur­ity defer­ence renders it suspect, the idea retains support because of its contin­ued applic­a­tion to racial others. When those who are detained, surveilled, or tortured are typic­ally brown or black, Muslim, and often immig­rants or foreign­ers, it is only too easy for judges to over­es­tim­ate the danger from second-guess­ing secur­ity agen­cies and under­value the harm of deny­ing redress.

The racial­ized effects and origins of national secur­ity defer­ence require its disarm­a­ment. The current Supreme Court, however, appears stead­fastly commit­ted to it. There is greater hope that lower courts can be convinced to inter­pret national secur­ity defer­ence narrowly, and that, over time, Congress can be pushed to reform the state secrets priv­ilege, expand civil remed­ies for govern­ment wrong­do­ing, and pass substant­ive reform of national secur­ity policies. This will not be an easy lift. But at a moment when racial justice move­ments have shif­ted public aware­ness, under­stand­ing the racial dimen­sions of national secur­ity defer­ence might help lay the found­a­tions for a longer-term trans­form­a­tion.

Shirin Sinnar is a Professor of Law and the John A. Wilson Faculty Scholar at Stan­ford Law School. Her schol­ar­ship focuses on the legal treat­ment of polit­ical viol­ence, the proced­ural dimen­sions of civil rights litig­a­tion, and the role of insti­tu­tions in protect­ing indi­vidual rights and demo­cratic values in the national secur­ity context.