Intelligence Law School - Course 1: Lesson 2.4.5 The Limited Importance of the Judicial Branch in U.S. Intelligence Law


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LESSON 2: PRIMARY LEGAL AUTHORITY IN THE FEDERAL SYSTEM


2.4 Judicial Decisions


2.4.5 The Limited Importance of the Judicial Branch in U.S. Intelligence Law


Lecture Audio



Annotated Lecture Transcript

2.4.5 The Limited Importance of the Judicial Branch in U.S. Intelligence Law

That pretty much wraps it up for judicial decisions, at least for now.

I’ll cover the role of judges and case law in more detail later on in Lesson 6.

Lesson 6 covers the structure of federal courts and the hierarchy of legal sources in the event of a conflict between competing sources of primary legal authority.

 

Before I move on, I will say that judicial opinions are far less prevalent in U.S. intelligence law than almost any other area of law.

As a practical matter, the Supreme Court has largely abdicated the Judiciary’s role as a co-equal branch of government in the national security field.[1]

The Keith case was decided over 40 years ago, back in 1972.

Since then, the Supreme Court hasn’t decided almost any cases directly involving abuses by U.S. intelligence agencies.

That doesn’t mean abuses haven’t occurred.

It just means the courts haven’t been willing to decide cases about them.

In later courses, I’ll explain how standing and other procedural technicalities are used to throw most litigants out of court.

 

For now, just know that there aren’t many cases to rely on.

In the absence of meaningful judicial oversight,[2] interpretation of U.S. intelligence law is left almost entirely to the President, the Attorney General, and the agencies themselves.

As you might imagine, intelligence agencies tend to interpret their own legal powers very broadly.

They also tend to construe any limitations on those powers very narrowly.[3]

 

This is why misuse of Supreme Court dicta is so damaging to the rule of law.

Even when the Supreme Court issues a unanimous holding striking down a warrantless domestic intelligence practice—as it did in the Keith case—the in-house lawyers working inside the Intelligence Community can always just scour the opinion for any piece of dictum that contradicts the Court’s holding.

They can then use that dicta internally to form a rationale that allows them to ignore the Court’s actual holding and continue to conduct the unconstitutional intelligence practice anyway.  

 

Since Supreme Court decisions on intelligence law topics come around only once or twice in a generation, it is particularly damaging to the rule of law when in-house lawyers make use of disingenuous legal reasoning to ignore Supreme Court mandates.

 

Footnotes

[1] Through creative manipulation of doctrines like standing and state secrets, the Court has made it all but impossible for an American citizen injured by intelligence abuses to seek justice in federal courts. This current state of affairs leaves Americans with minority views entirely unprotected against the whims and fanaticism of majoritarian expediency in times of crisis. We cover a number of Supreme Court decisions interpreting relevant constitutional provisions and statutes, but as you will see, most of these holdings support the notion that individuals have no access to justice when the government claims national security as its rationale for misconduct.

[2] See generally Gene R. Nichol, Injury and the Disintegration of Article III, 74 Calif. L. Rev. 1915 (1986).

[3] One factor that may lead to questionable internal interpretations stems from the fact that the relevant cases that are decided by the Supreme Court almost always deal with law enforcement surveillance rather than intelligence surveillance. Whenever a case is decided based on facts arising in the law enforcement context, lawyers working inside an intelligence agency have an automatic rationale to justify non-compliance by their agency. They can simply issue internal interpretive rules distinguishing the Supreme Court’s new holding as being limited to law enforcement activities and not applicable to intelligence operations. In the absence of external oversight by the courts to challenge this type of reasoning, a bad-faith interpretation like this can be adopted as law inside the agency and govern its operations for decades, leaving the rights of American citizens completely unprotected from abuse.

 


© 2012 David Alan Jordan. All rights reserved.