Resolving National Security Questions: a Comparative Analysis of Judicial Review in the United States, Israel, and Europe
RESOLVING NATIONAL SECURITY QUESTIONS: A
COMPARATIVE ANALYSIS OF JUDICIAL REVIEW IN
THE UNITED STATES, ISRAEL, AND EUROPE
HALDOR MERCADO*
ABSTRACT
U.S. federal courts frequently decline to reach the merits of national security
cases, instead deferring to the judgment of the executive branch on what are seen
as “political questions.” Foreign courts are less deferential. This Article looks at the
judicial review of national security cases in the United States, Israel, and Europe
and demonstrates that U.S. federal courts are as capable as courts in Israel and
Europe of deciding sensitive national security cases without infringing on the
Constitution’s separation of powers. First, the Article examines the history of
national security issues in U.S. courts and, in particular, the political question
doctrine and its application to targeted killing cases. Targeted killing is a useful
policy to examine in this context both because it has become a central feature of the
U.S. national security policy against terrorism and because so few U.S. courts have
reached the merits in targeted killing cases. The Article then analyzes national se-
curity cases and underlying approaches in Israel and Europe. Finally, the Article
compares the three legal systems and addresses the benefits, risks, and possible
approaches U.S. federal courts could take to play a more active role in national
security cases. Ultimately, the evidence from Israeli and European courts weakens
U.S. justifications for dismissing national security claims based on a lack of judi-
cial capacity to make decisions or out of respect for the separation of powers.
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598
II. NATIONAL SECURITY ISSUES IN U.S. COURTS . . . . . . . . . . . . . . . . 598
A. The Political Question Doctrine. . . . . . . . . . . . . . . . . . . . . 601
B. Targeted Killing in U.S. Courts. . . . . . . . . . . . . . . . . . . . . 604
III. NATIONAL SECURITY ISSUES IN ISRAELI COURTS . . . . . . . . . . . . . . 608
A. The Political Question Doctrine. . . . . . . . . . . . . . . . . . . . . 609
B. Targeted Killing in Israeli Courts . . . . . . . . . . . . . . . . . . . 611
IV. NATIONAL SECURITY ISSUES IN EUROPEAN COURTS . . . . . . . . . . . . 613
V. COMPARING THE DIFFERENT APPROACHES . . . . . . . . . . . . . . . . . . 616
VI. CONCLUSION: A WAY FORWARD?. . . . . . . . . . . . . . . . . . . . . . . . 621
* Haldor Mercado has a J.D. from Georgetown University Law Center. He is currently a Law
Clerk at the District of Columbia Court of Appeals. He would like to thank Professor Mary DeRosa
and his parents for their thoughtful guidance and feedback on earlier drafts of this Article.
V
C 2020, Haldor Mercado.
597
I. INTRODUCTION
Visiting the United States in 1831, Alexis de Tocqueville observed
that “[s]carcely any political question arises in the United States that is
not resolved, sooner or later, into a judicial question.”
1
Whatever the
merit of this observation in other areas of law, in the national security
context it is largely untrue.
2
Despite an ever-increasing number of cases
involving counterterrorism and other national security issues reaching
federal courts, those courts are far more likely to dismiss cases on
threshold issues than reach the merits of the claims, thus effectively
deferring decisions on counterterrorism and other national security
issues to the political branches. Not all countries’ courts defer so readily
to the political branches, however, and there are lessons to be learned
from those foreign courts.
This Article looks at judicial review of national security cases in U.S.,
Israeli, and European contexts to show that U.S. federal courts are as
capable as courts in Israel and Europe of deciding sensitive national se-
curity cases without infringing on the Constitution’s separation of
powers. Section II briefly outlines the history of national security issues
in U.S. courts and examines the political question doctrine and its
application to targeted killing cases. As will be discussed below, targeted
killing is a useful policy to analyze in this context both because it has
become a central aspect of the U.S. national security policy against ter-
rorism and because so few U.S. courts have reached the merits in tar-
geted killing cases. Sections III and IV then analyze national security
cases in Israel and Europe. Finally, Section V and the Conclusion com-
pare the three legal systems and address the benefits, risks, and possible
approaches U.S. federal courts could take to play a more active role in
national security cases.
II. NATIONAL SECURITY ISSUES IN U.S. COURTS
As with many legal issues, it is worth starting at the Constitution when
considering how U.S. courts handle cases that implicate national secu-
rity. The phrase “national security” is not used in the Constitution, but
the Framers addressed the related concept of foreign affairs with
respect to all three branches of the government. First, Article II defines
the President’s significant role in foreign affairs: “[t]he executive power
shall be vested in a President of the United States of America,”
3
and
1. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA, VOL. 1, 280 (Phillips Bradley ed., 1991).
2. STEPHEN DYCUS ET AL., NATIONAL SECURITY LAW, 123 (5th ed. 2011).
3. U.S. CONST. art. II, § 1.
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
598 [Vol. 51
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