White (House) Lies: Why the Public Must Compel the Courts to Hold the President Accountable for National Security Abuses

Abstract

Many have documented this administration's penchant for deliberate misrepresentations on national security -- in blunt terms, for lying to the American people about threats at home and abroad. Some have written about other administrations, Democrat and Republican, that have misled the public about threats to the nation's safety. Fewer have written about who is to hold the executive accountable for this dissembling and how this is to be done.

And what almost no one has closely examined in both jurisprudential and Realpolitik terms is this: If the task of holding the executive accountable to the constitutional standards ultimately falls on the courts, how does the American public hold the judiciary accountable -- how do we assure that the courts actually scrutinize, rather than blindly accept, the executive's proffered justification for ostensible national security restrictions of our most basic freedoms? This under-explored question is the focus of this essay, and it opens discussion about the strategic need for critical legal advocacy and the significance of constructive public pressure on the courts.

To stimulate that discussion this essay draws a broad "strategic blueprint" for building the political coalitions and cultural momentum needed to impel close judicial scrutiny of executive national security claims. The price for failing to build those coalitions and that momentum is a weak judiciary, unfettered presidential power, and civil liberties disasters in waiting. The proposed blueprint delineates the "who" (a wide array of public advocates tasked with pressuring judges, and the legal process itself, to assure executive accountability); the "how" (critical legal advocacy coupled with organized media and grass roots politicking); and the "what" (judicial acknowledgment that law as interpreted and applied is not neutral or objective in controversial cases, and that, in a genuine democracy, it is the court's role to carefully scrutinize executive national security actions that curtail fundamental civil liberties).