07/03/2013 07:41 pm ET Updated Sep 02, 2013

The Courts and National Security: A False Hope

The arrest of the Boston Marathon bomber, the new disclosures about NSA surveillance and data mining, and our continuing use of drones to assassinate high-value targets have produced a perfect storm of debate over how best to protect our nation against domestic and foreign terrorism while preserving our civil liberties. Too often, we look to courts to resolve this dilemma, but they can't. If inserted into core national security decision making, they will inevitably disappoint us.

Three reasons explain why this hope is false: the nature of national security decisions; the limited capacities of courts; and our legal history. The temptation to turn to courts in this situation is a symptom of a much deeper malady -- the decline of public confidence in the federal government -- which courts cannot cure and may only exacerbate.

Consider first why decisions about drone targeting of terrorists are so difficult. The stakes to both America and the target could not be higher. The government has compiled information about the potential target from many sources, some more reliable than others. Most have mixed motives (indeed, some are paid for their information) and scores to settle, so assessing reliability is a matter of seasoned judgment from the field. Sources must be cultivated and protected from reprisals, so secrecy is essential. The situation is so fluid that a decision to strike must be made rapidly, before the brief window of opportunity closes. Such situations simply bear no resemblance to the familiar cases in which courts routinely review the legality of administrative action and the credibility of witnesses (which usually is left to a jury anyway).

Nor do courts bring any special capacities to this task. As I tell my law students early on, judges are not specially endowed; they are just respected lawyers with good political connections, black robes, and extraordinary job security. They hear lots of cases, but few if any involve government decisions of this type. The relatively limited legal doctrine in this particular area is probably better understood by the government lawyers who must work with it each day than by a judge recruited for a particular case. They are less accountable than the responsible national security officials who are Senate-confirmed or answerable to the president. Accordingly, we should not be surprised to learn that the judges who are now authorized to second-guess some intelligence-gathering decisions -- the Foreign Intelligence Surveillance Court -- approved all but one of the government's 1856 requests in 2012. Critics deride this record as rubber-stamping, but it actually reveals how little judges can bring to this kind of decision and how they themselves recognize that fact.

Our federal courts have played a central role in safeguarding our precious constitutional values from encroachments by government and other power centers. But history teaches that where Congress and the president have invoked plausible national security interests, the courts have almost always deferred to them, for better and for worse. In the infamous Dred Scott case, the Supreme Court upheld a system of slavery that the Buchanan administration argued was necessary to hold the nation together. During and after World War I, the Court upheld government efforts to suppress criticism; recall that the great defenses of free speech in those cases were written by the losing side. In World War II, the Court upheld the execrable Japanese internment programs. This pattern of deference to national security claims continues to today -- especially where the president's actions appear grounded in congressional action, as with FISA and military court prosecution of suspected terrorists. Deference continues even in detention cases, which are closer to traditional judicial functions than the NSA and targeting decisions. The fact that courts have little or no role to play in these latter efforts is no cause for dismay. Placing them at the center of such decisions would tend to tarnish them, as is now occurring with the FISA court. If they could significantly improve that process, the risk might be worth taking, but they cannot.

There are other ways to strike a better balance between these anti-terrorism efforts and the need to protect both citizens' privacy and the danger of error -- and in the process to avoid a constitutional conflict over war powers that could truly threaten national security. The administration, consulting closely with Congress, should disclose as much detail about surveillance and targeting programs as effective war-fighting permits. Yet the Obama administration has not come close to this standard, thus sowing the same needless suspicion that his predecessor did by failing to consult Congress until he was forced to.

The greatest danger is this: public trust in Washington has declined to the lowest levels since polling began. If our leaders explain more fully the threats we face, the alternative policies under consideration, and the hard tradeoffs among these options, the public might even conclude that in this area, at least, greater confidence is warranted.