Can Courts Be ‘Trusted’ in National Security Crises?
Matthew C. Waxman
Waxman.pdf (611.34 KB)
Can Courts Be ‘Trusted’ in National Security Crises?

A challenge for any democratic republic is to establish modes of governance that can effectively defeat or mitigate national security threats while also preserving freedoms and public accountability. To many, especially during national security crises, courts are expected to act as guardians of liberty and the boundaries of state power. 

Historically, US courts have played an important but cautious role in checking aggressive executive actions, and the Supreme Court’s responses to enemy combatant detention practices demonstrate familiar historical patterns of judicial intervention during national security crises. 
The experience with enemy combatant detentions also illustrates the strategic importance of legitimacy. Whatever their limitations, courts are uniquely suited to provide decision-making legitimacy because of their relative political independence and their deliberative virtues.