Rule of Law Tropes in National Security
53 Pages Posted: 13 Apr 2016
Date Written: April 11, 2016
In seeking to insulate national security conduct from external review, executive officials often publicize self-imposed rules that appear to subject their authority to familiar, well established legal standards from constitutional or international law. But executive officials sometimes invoke such standards in public while deviating from prevalent interpretations of those constraints in secret. The effect is to mislead courts, policymakers, and the public about the extent to which national security actions threaten individual rights and democratic values. “Rule of law tropes” lead observers to draw false equivalences across legal contexts, obscuring hard questions surrounding liberty and security, and ultimately undermine the rule of law. This Essay critiques the national security executive’s deployment of rule of law tropes, with a primary focus on one striking but barely noticed example: the Executive’s invocation of, and secret departures from, a “reasonable suspicion” standard for placing individuals on the terrorist watchlist.
Keywords: National security, civil rights, constitutional law, international law
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