The following op-ed was written by Sudha Setty, Professor at Western New England University School of Law in Springfield, MA, who specializes in comparative national security. It was originally published in The Herald News on October 28, 2012, and on Truthout.org.
We Americans tend to think that serious grievances deserve a day in court. Yet here in America — unlike some of our allies — courts have eroded access to justice for people injured by misguided national security efforts.
We see the centrality of courts in action every day, from the Supreme Court’s decision on Obamacare this spring to George Zimmerman facing trial for killing Trayvon Martin in Florida. Getting one’s day in court is not a guarantee of victory. But it is fundamental to holding our government and each other accountable.
On Oct. 29, the Supreme Court will hear oral argument in Clapper v. Amnesty International, a case about dragnet domestic surveillance unsupported by warrants. The court’s decision will largely determine whether this aspect of counterterrorism will remain subject to courts, or instead be placed above them.
Over the last decade, judges have repeatedly told torture victims that they don’t have the right to a day in court when they seek compensation. Even when victims have substantial publicly available evidence to support their claims, our government and its private contractors have remained above the law.
Under most circumstances, these plaintiffs would have their day in court. Our constitutional and civil rights demand that. But when it comes to national security, the Bush and Obama administrations asked courts to toss these cases, even before plaintiffs have a chance to share their side of the story, invoking the state secrets privilege and other procedural hurdles.
The courts have been entirely complicit, abdicating their role of providing a forum in which these claims can be heard. Instead of examining the facts and applying the law, our courts routinely dismiss cases at the earliest stages.
American courts have been overly formalistic, nervous and sheepish, consistently bowing before government claims that allowing (even potential) accountability for human rights abuses would somehow be tantamount to inviting terrorism.
Even worse, judges have accepted these claims with little question, washing their hands of the tough business of demanding that our government justify its actions. They echo the misplaced judicial deference that affirmed our government’s decision to intern Japanese Americans during World War II.
Yet other countries facing national security issues for decades have already developed successful alternatives. The Israeli Supreme Court has addressed many security-related claims since its founding. It hears a case if at all possible, and deals with issues related to secret information as they arise. None of this guarantees a favorable outcome for a plaintiff, but it does give everyone their day in court.
The Israeli Supreme Court’s reasoning is worth repeating here. In a case challenging an Israeli military action involving targeted killings (another area in which the U.S. government has successfully evaded judicial review), the Israeli Supreme Court rejected claims that security cannot exist if the government is made accountable for its actions, saying that “where the implementation of a security policy involves a violation of human rights, the court should examine the reasonableness” of the government’s actions.
In England, too, courts have pushed back against their own history of deferring to government secrecy. Relying on principles of open justice, courts have held that the government must disclose information on alleged rendition and torture. They bucked tremendous political pressure, from both the British and U.S. governments.
Unlike their American counterparts, judges in England and Israel have made clear that the job of courts is to make a democratic government accountable to the people when political actors do not.
In the Clapper case, the Obama administration won’t disclose whether the plaintiffs were actually under surveillance, but will paradoxically argue before the Court that the plaintiffs don’t deserve a day in court because they can’t prove (due to government secrecy) that they, in particular, were actually monitored.
It would be a shame — for our country, and for our courts in particular — if the administration’s position prevails. We should be skeptical when our government undermines access to justice, especially when some of our allies are able to maintain this right in the face of equally (if not more) serious national security considerations.
In the end, when courts are unwilling to afford people their day in court, it’s not just the individual plaintiffs who suffer, but rather American democracy as a whole.
Samuel Walker’s latest book, Presidents and Civil Liberties from Wilson to Obama: A Story of Poor Custodians, details the untold story of our nation’s leaders in their cumulative failure to guard and advance our civil liberties. While often viewed as a recent development, Walker rebukes the notion of presidential neglect as a modern precept. Rather, Walker portrays the modern state of civil liberty in the context of presidential history, connecting contemporary excesses to the precedents of former administrations.
Subscribe to this blog via RSS