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.

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