IALL 2022 Recap: National Security and Accountability in the Courts

By Michael McArthur

The final talk of the International Law Libraries Annual Course was another sobering perspective on the U.S. administration, most notably the absence of judicial review under the guise of national security. Stanford’s Professor Shirin Sinnar gave the presentation, titled “National Security and Accountability in the Courts.”

She began with the story of Professor Xiaoxing Xi, whose home was raided by the FBI in 2015 on account of an accusation that he was sharing private scientific technology with China. The news made the headlines and his life was turned upside-down, only to have the charges dropped a few months later. In an attempt to clear his name, he sued the FBI agents and the FBI for malicious prosecution based on his Chinese background. His claim was dismissed, unable to get past the threshold of Bivens action that protects federal agents for constitutional violations. The court went on to say that there was no comparable alternative remedy. Professor Xi was out of luck.

In the years since the September 11th attack in 2001 many case arose out of the sprawling war on terror. Early on, courts pushed back on the broad expansion of power, but in the last decade, national security deference has strengthened. Professor Sinnar provided examples of this trend through four SCOTUS cases. The first was the 2013 Clapper v. Amnesty case, the court denied standing to a journalist who was the target of U.S. government surveillance. This has created an lack of oversight by the courts to monitor the activities of the NSA, FBI, and other security bodies.

Next, in the 2018 Trump v. Hawaii case, the court focused on the facial words of the law rather than the obviously bias language of the President. The glaring issue provoked references to the infamous Korematsu case in Sotomayor’s dissent. The third case was this year’s U.S v. Husayn, which dealt with torture by the U.S. government in Poland. The fact that it happened in Poland was not at issue, as the Polish government had verified the fact and it had been reported in various media outlets, however the court still ruled that allowing formal testimony of that fact would go against national security and state secrets. The final case was Egbert v Boule (2022), which confirmed broad deference to the Border Patrol, even for actions on private land.

To sum up, Professor Sinnar explained that there are a few reasons why government discretion should be kept in check. First, the effects of national securing deference falls hardest on minority communities that are most likely to be seen as security threats. Race has always been an issue for the people the nation should be protecting. And secondly, court application can be both expansive and selective at the same time. Expansive in the broad immunity law enforcement enjoys, but selective when it comes to particular topics such as targeting national security issues while limiting other policies such as those addressing climate change.

Author: Eliza