Sometimes You Have to Go Backwards to Go Forwards: Judicial Review and the New National Security Exception to the Fourth Amendment

Abstract

National security concerns have historically provided a strong basis for non-justiciable Executive Branch action; however, post 9/11, such actions have grown to encompass a greater number of American citizens' civil liberties. The federal judiciary's deferential treatment of national-security related conduct, particularly in the realm of suspicionless searches, occurs with dangerous frequency, and any semblance of meaningful review has been nearly eviscerated. The stakes involved in national security are weighty and, in many instances, present the courts with an artificial choice: uphold a potentially over-zealous suspicionless-search program but avoid danger, or strike down such a program in favor of civil liberties only to risk causing mass tragedy. Instead of being confined to two extreme choices, the courts should instead implement a more robust review process akin to the federal courts' institutional reform practice in the school desegregation and prison reform cases, which would allow remedial flexibility with programs that are constitutionally problematic. Using the suspicionless-search program instituted in July 2005 by the New York City Police Department as a sample, this paper demonstrates the way in which the courts could structure such remedial decrees to monitor and maintain a program's constitutionality. In lieu of creating yet another exception to the Fourth Amendment, the federal courts should heed the lessons from their own experience to avoid the potentially limitless extension of a new national security exception into civil liberties.