Volume 51
Issue 3
Spring '20

Resolving National Security Questions: A Comparative Analysis of Judicial Review in the United States, Israel and Europe

Written By: Haldor Mercado

Abstract

U.S. federal courts frequently decline to reach the merits of national security cases, instead deferring to the judgment of the executive branch on what are seen as “political questions.” Foreign courts are less deferential. This Article looks at the judicial review of national security cases in the United States, Israel, and Europe and demonstrates that U.S. federal courts are as capable as courts in Israel and Europe of deciding sensitive national security cases without infringing on the Constitution’s separation of powers. First, the Article examines the history of national security issues in U.S. courts and, in particular, the political question doctrine and its application to targeted killing cases. Targeted killing is a useful policy to examine in this context both because it has become a central feature of the U.S. national security policy against terrorism and because so few U.S. courts have reached the merits in targeted killing cases. The Article then analyzes national security cases and underlying approaches in Israel and Europe. Finally, the Article compares the three legal systems and addresses the benefits, risks, and possible approaches U.S. federal courts could take to play a more active role in national security cases. Ultimately, the evidence from Israeli and European courts weakens U.S. justifications for dismissing national security claims based on a lack of judicial capacity to make decisions or out of respect for the separation of powers.

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