Against National Security Exceptionalism

Abstract

Terrorist attacks trigger novel policy responses. New policies selected by the federal executive after the 9/11 attacks strained against constitutionally permissible margins, and prompted diverse judicial responses. The resulting scholarly literature is largely normative. But the currently dominant accounts of national security jurisprudence also each include some descriptive claim about what courts in fact do. Each account further claims that courts do something distinctive in these cases. That is, in the course of making a prescriptive argument for what courts ought to do differently in national security cases, these accounts make a descriptive claim about what courts in fact do differently in this class of cases. I argue that this threshold descriptive claim – call it “national security exceptionalism” – finds no empirical support in at least one important class of post-9/11 cases concerning emergency detention policies. Instead, judicial responses to national security emergencies align closely with transubstantive trends in public law and judicial responses to non-security emergencies. Using the Supreme Court’s recent ruling in Ashcroft v Iqbal as a starting point, I examine the close and largely unexamined relationship between national security jurisprudence and the larger domain of public law doctrine and practice. Situating judicial responses to national security emergencies in a more general public law context draws attention to the role emergencies can play in catalyzing larger legal changes law, and the effect of transubstantive trends on emergency responses. It further may have a bearing on the emergent “national security” discipline in the legal academy.