SCOTUS and the Cautious Approach to Policy on National Security

In my third reflection essay, I discussed an issue regarding the Supreme Court and its role in mediating policy during a time of wartime or serious national crisis. Particularly, I made an example out of the landmark case, “Korematsu v. United States”. In this analysis of the carefully balanced relationship between national security and civil liberty, I made a claim that SCOTUS is in fact obligated to exhibit extreme skepticism of any government attempt to suspend a liberty, or to specifically target one group of individuals deemed to be a threat to national security. There are many such pieces of evidence to expand upon here, and aspects of the Korematsu case that I feel are pertinent to my opinion on the matter. 

In issuing his scathing dissent to the majority opinion, Justice Jackson made a bold claim regarding his feelings about what the implications of a 6-3 ruling in favor of the U.S Government were. He claimed that the ruling was in essence the “legalization of racism in America”, and that it was in direct violation of the Equal Protection Clause as laid out in the Fourteenth Amendment. As a matter of fact, Justice Jackson went even further than that. He remarked that the exclusion order was akin to the, “abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy”. This second remark, in my opinion, gets right to the heart of why the Supreme Court is best served in exhibiting skepticism of any government attempt to oppress one minority group in a time of crisis under the assumption that it is a threat. Jackson correctly points out that it is in times of crisis when we must be cautious not to stoop down to the level of those tyrannical forces we seek to defeat. Justice Jackson here seems to be pulling from Nietzsche’s suggestion to, “Beware that, when fighting monsters, you yourself do not become a monster…”.

This idea of cautious action in the fight against evil, is essential to how the Supreme Court should approach matters of national security in my opinion. One could even look to a more recent Supreme Court ruling in “Rasul v. Bush” as a great example of this cautious and skeptical action being taken. It would have been easy for the 9 Justices to rule that U.S courts did not in fact have the jurisdiction to hear appeals of Habeas Corpus from Guantanamo Bay detainees, and to act in lock step with the military and intelligence brass of the United States Government. In this case, however, 6 of the 9 Justices chose to recognize the slippery slope that identifying Guantanamo Bay as an extraterritorial zone might lead to for both American Citizens and foreigners. In the case of Korematsu v. U.S, such wisdom was not to be found in 6 of our Justices. Fortunately, in the year 1983, the Korematsu case was reopened with a new legal team behind the wheel. With the case reopened, new evidence of the depravity and dishonesty of the federal government’s attempts to keep the narrative of a Japanese-American citizen threat alive were brought to light. We now understand that under the direction of F.B.I Director J. Edgar Hoover, documents that quite clearly exposed little or no threat posed by Japanese-American citizens were deliberately destroyed or withheld from public access. That same year, a federal judge sided with Korematsu and provided some sense of justice to every Japanese-American wrongfully detained during World War II. Although the original SCOTUS ruling stands, the record was somewhat corrected at the federal judicial level.

With all of this in mind, it becomes increasingly difficult to make an argument in which the Supreme Court is not best served in taking the cautious approach in issuing opinions regarding national security. Given the findings of the 1983 revisiting of the Korematsu case, it can now be said with certainty that the government is not only willing to oppress a minority in a time of crisis against the Equal Protection Clause of the Fourteenth Amendment, but it is willing to do so even as the intelligence suggests that no real threat exists in the first place. Had the 9 Justices presiding over the Korematsu case been privy to such evidence of the F.B.I’s malfeasance, it becomes a stretch to assume the same ruling would’ve been held in favor of the United States. In my opinion, the findings of the new legal team tasked with revisiting Korematsu in 1983 should stand as a reminder to every future Supreme Court Justice that the government is absolutely willing to lie, destroy evidence, and bend the rules so as to achieve whatever depraved policy goal is on the agenda regardless of the alleged “threat to national security”.

All of this brings us to one simple question. If the judicial litmus test to decide whether or not the government can deprive a citizen of liberties is dependent on condition the threat of public danger is “imminent, immediate, and impending”, how do we reckon with the reality that the most powerful intelligence and military institutions are in fact in control of the sensitive information necessary to pass that test? After all, the revisitation of Korematsu v. The United States in 1983 exposed that the intelligence community is willing to suppress whatever information might complicate the desired policy goal. This is an institutional problem that remains relevant even in the current political environment. According to the Former CIA Director from 2006-2009, Mike Hayden, “We are chiseling away at processes and institutions on which we currently depend — and on which we will depend in the future”. He made this comment regarding a congressional memo announcing that the FBI would begin sharing less confidential information in light of sensitive leaks to the public during the onset of the Trump administration. The result of this revelation, in my view, is that it now behooves a justice to recognize this judicial litmus test as fundamentally flawed, given that our intelligence agencies have in a sense accumulated a monopoly on access to information crucial to understanding the nature of the national security threats that we face. Thus, the emergent structural bias to withhold and destroy sensitive information is grounds for all future cases surrounding national security policy to be viewed with the utmost skepticism of government and extreme partiality leaning toward liberty as laid out by the United States constitution. This should be the default mentality of any Supreme Court Justice in a position to make policy judgement.