U.S. Judicial Independence: Victim in the 'War on Terror'

Abstract

One of the principal victims in the U.S. so-called “war on terror” has been the independence of the U.S. Judiciary. Time and again, challenges to assertedly illegal conduct on the part of government officials have been turned aside, either because of overt deference to the Government or because of special doctrines such as state secrets and standing requirements. I have even described the behavior of the U.S. since 9/11 as a “war on the Rule of Law.” This paper catalogs the principal cases first by the nature of the government action challenged and then by the special doctrines invoked. What I attempt to show is that the judiciary has virtually relinquished its valuable role in the U.S. system of judicial review. In the face of governmental claims of crisis and national security needs, the courts have refused to examine, or have examined with undue deference, the actions of government officials. Oddly enough, the mostly Republican Supreme Court has shown more stiff resistance than most of the lower courts but still has ducked some significant issues.

To be clear, many of the people against whom these abuses have been levied are, or were, very dangerous if not evil individuals. But hundreds of years of history show that there are ways of dealing with such people within the limits of restrained government without resort to the hubris and indignity of unreviewed executive discretion. The turning of blind eyes by many, albeit not all, federal judges is a chapter of this history that will weigh heavily against us in the future. There is nothing new in the killing of innocents for religious or political vengeance. This violence has always been with us and will unfortunately continue despite our best efforts to curb it. Pleas for executive carte blanche power are exactly what the history of the writ of habeas corpus were developed to avoid, and what many statements in various declarations of human rights are all about. The way of unreviewed executive discretion is the way of tyranny.

Keywords: judicial independence, terror, powers

JEL Classification: K33, K42