DISCIPLINING DEFERENCE: STRENGTHENING THE ROLE OF THE FEDERAL COURTS IN THE NATIONAL SECURITY REALM.

• Author: Barceleau, Dominic X.

INTRODUCTION

In a much discussed and influential speech at the National Defense University in May of 2013, President Barack Obama discussed the United States' national security situation. (1) About midway through the speech, President Obama made the following statement:

The Afghan war is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may... continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. (2) Despite this aspirational rhetoric, little has been done to "discipline" the actions of the United States regarding drone strikes and other national security measures such as the detainment of suspected terrorists. (3) As the United States transitions into a post, post-9/11 period, the need for judicial deference to the Executive may well be decreasing along with the imminence of national security threats. However, federal district and appellate courts have continued to show high deference to the executive branch in cases involving national security. This Note will argue that federal courts need to be more "disciplined" in their deference determinations in order to effectively check the Executive's power. Part I will look at the Constitution and its allocation of foreign relations powers for evidence of the appropriate amount of deference that ought to be shown by the judiciary. While the text of the Constitution is largely silent on this question, Part I will show that this silence does not exclude a role for the judiciary in foreign affairs. Part II will proceed to discuss several important Supreme Court decisions that have helped to flesh out the historical understanding of deference determinations. These cases will demonstrate that the Supreme Court has not historically hesitated to fulfill its duty to "say what the law is," (4) even in cases regarding questions of national security. Part III advances to the post-9/11 era and shows that during more recent years, lower courts have conferred an unnecessarily high level of deference to the Executive in cases involving national security issues. After this background, Part IV will make a case for an expanded role for the courts in hearing and reviewing questions involving national security questions and more limited deference to the Executive on these matters. It will argue that this should be accomplished through the application of three principles: (1) a more formal approach to the judiciary's role in foreign affairs; (2) a willingness to apply international law; and (3) a narrow approach to the issues of the case in order to avoid judicial policymaking. Finally, Part V will analyze two recent cases, Bahlul v. United State (5) and Ali Jaber v. United States, (6) in light of these principles in order to illustrate the benefits that such an approach would have.

1. FOREIGN AFFAIRS AND THE CONSTITUTION (7)

   The Constitution does not vest any one branch with the plenary power of "foreign affairs." (8) Instead, it delegates specific powers related to foreign affairs to a branch or some combination of branches. (9) Article I grants Congress the powers: "To regulate Commerce with foreign Nations"; "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations"; "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"; "To raise and support Armies"; "To provide and maintain a Navy"; "To make Rules for the Government and Regulation of the land and naval Forces"; and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." (10) Article II makes the President the "Commander in Chief of the Army and Navy," and grants him the power "by and with the Advice and Consent of the Senate," to "make Treaties" and "appoint Ambassadors." (11) Article III vests the courts with the judicial power and extends this power to

   [A]ll Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies... between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. (12) From this cursory textual analysis, one can see that the Constitution's delegation of foreign affairs powers is by no means comprehensive. (13) Any attempt to justify all of the aspects of the modern foreign affairs powers in the text of the Constitution "requires considerable stretching of language, much reading between lines, and bold extrapolation from 'the Constitution as a whole.'" (14) Thus, the foreign affairs powers are largely and necessarily "extra-constitutional." (15) One must look to sources outside the Constitution to determine the location and limits of such powers. (16) Of particular importance for this Note is the role of the judiciary in foreign affairs--under what circumstances and to what degree should the judiciary show deference to the political branches? When the political branches are acting within their specific constitutionally delegated authority--for example, when Congress declares war or when the Executive negotiates a treaty--the judiciary ought not refuse to review a challenge to such action. To borrow the words of Professor Henkin, "There is reason for due deference to the executive, but not for undue deference--for due judicial humility, but not undue humility." (17)

   The Federalist Papers provides some important insight into the question of judicial deference. These writings show that the Founding Fathers clearly contemplated an independent role for the judiciary in foreign affairs. (18) In The Federalist No. 3, while arguing that the national government is better suited than the state governments to deal with foreign affairs, John Jay wrote, "It is of high importance to the peace of America that she observe the laws of nations...." (19) Jay clearly contemplated a role for the judiciary in ensuring this observance. He argued that the national government would attract the best and brightest minds, with the "result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations." (20) Alexander Hamilton further explained the role of the judiciary in foreign affairs in The Federalist No. 80. "The Union will undoubtedly be answerable to foreign powers for the conduct of its members.... [And] it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned." (21) Furthermore, he noted that "cases arising upon treaties and the laws of nations... may be supposed proper for the federal jurisdiction." (22) These writings show that the Framers intended the federal courts to play a role in foreign affairs, even to the point of handling cases arising under the laws of nations. The Supreme Court has decided a number of cases that have further shaped the contours of the judiciary's role in foreign affairs. Part II will discuss these cases and their effect.

2. FOREIGN AFFAIRS AND THE JUDICIARY

   The federal judiciary has decided cases involving issues of foreign affairs and national security from the time of the United States' founding. The Supreme Court has not always refused to hear a case simply because it requires the consideration of issues touching on foreign affairs. (23) Part II will look at several of these cases to identify the level of deference the judiciary has historically shown to the executive branch in this field.

   To begin, in Bas v. Tingy, (24) which touched on an ongoing conflict between the United States and France, the Supreme Court was called on to interpret a U.S. statute to determine "[w]hether France was an enemy of the United States, within the meaning of the law?" (25) Though Congress had made no declaration of war, (26) the Court held that, for the purposes of the statute, France and the United States were enemies. (27) The Supreme Court did not defer to the judgment of the Executive or wait for Congress to declare war before deciding the case. Instead, this decision was reached by looking at "the situation of the United States in relation to France." (28) The Court looked at evidence such as the United States' "dissolv[ing its] treaty" with France and Congress's "enjoining the [United States]... to attack [France] on the high seas." (29)

   A second informative case from this time period is Little v. Barreme. (30) During the same conflict with France, Congress passed a law requiring the seizure of American ships travelling to French ports. (31) President John Adams instructed Captain Little to stop ships "bound to, or from, French ports." (32) The Court was asked to decide if Captain Little was excused from paying damages because he was acting according to the President's instructions. Answering this question required the Supreme Court to consider whether the Executive's interpretation of the law superseded the intent of the Congress. The Court held that it did not, explaining, "instructions cannot... legalize an act which without those instructions would have been a plain trespass." (33) Here again, the Supreme Court did not sit out the case because it involved foreign affairs. And they did not simply defer to the political branches. Instead, the Court chose to interpret and apply the relevant law despite the fact that the Executive had interpreted it...