A Workable Method

2018 ◽  
Author(s):  
Eric K. Yamamoto
Keyword(s):  
National Security ◽  
Judicial Review ◽  
Numerous Case ◽  
Careful Scrutiny ◽  
The Government ◽  
Judicial Scrutiny

This chapter discusses the task of methodology. How might a court ascertain the appropriate mode of review in a given security-liberty case, and how might the court effectively undertake that review? The chapter suggests a calibrated judicial review method that affords the government wide latitude in most national security matters, with courts adopting a posture of substantial deference. However, when the government claims pressing public necessity to legitimate measures that curtail fundamental liberties of citizens or noncitizens, careful judicial scrutiny takes over. With Korematsu as backdrop, the method delineates the mechanics for selecting the appropriate type of review in a given case. In doing so, it speaks to a judicial review conundrum generated by a briar patch of unexplained boilerplate language in numerous case opinions—opinions that first recite “the court’s substantial deference” to the executive on security matters, then follow with “but the court is duty-bound to protect constitutional liberties,” implicating careful scrutiny.

Realpolitik Influences

2018 ◽  
Author(s):  
Eric K. Yamamoto
Keyword(s):  
National Security ◽  
Judicial Review ◽  
Crucial Role ◽  
Final Section ◽  
Symbiotic Relationship ◽  
Law And Politics ◽  
Judicial Scrutiny ◽  
Politics And Law ◽  
The Impact

This chapter identifies realpolitik influences on the implementation of the proposed method for judicial review. It dispels the formalist notion that the judicial embrace of the method—any method—will itself assure its faithful operation. The chapter acknowledges the importance of judicial methods both for case adjudication and for judicial legitimacy. But, in light of the “flux and pressure of contemporary events,” it also identifies a crucial role for legal advocates and the American populace. It posits that careful judicial scrutiny in practice often results from a ragged combination of law and politics. This chapter’s final section tightly illustrates the impact of this kind of advocacy and pressure in Dr. Wen Ho Lee’s national security prosecution debacle. Dr. Lee’s story uplifts the realpolitik insight that there “is a symbiotic relationship between politics and law, in which civil society’s appeal to law informs politics, and that politics reinforces the law’s appeal.”

Balancing Security and Liberty

2020 ◽  
pp. 189-213
Author(s):  
Yvonne Tew
Keyword(s):  
National Security ◽  
Judicial Review ◽  
Basic Structure ◽  
Preventive Detention ◽  
Public Order ◽  
Constitutional Amendments ◽  
Emergency Powers ◽  
Flexible Framework ◽  
Judicial Scrutiny

Emergency powers and national security laws have long been features of a powerful state in Malaysia and Singapore. In addition to extensive emergency regimes, these states have employed security laws authorizing preventive detention as well as public order statutes regulating expression and assembly. Courts have traditionally been highly passive in scrutinizing government actions taken in the name of national security or public order, refusing to assess whether the vast powers wielded by the executive were reasonable. This chapter makes the case for greater judicial scrutiny over whether government restrictions on individual liberties are justified. Proportionality analysis offers a rigorous, yet flexible, framework that courts can use to engage directly with the government’s justifications of national security and public order. And on some occasions, courts may have to employ a constitutional basic structure doctrine to strike down legislative attempts to pass statutes or constitutional amendments aimed at removing judicial review or eroding institutional safeguards. These judicial mechanisms would aid courts in the critical, yet sensitive, endeavor to balance security and liberty.

In the Light of Justice

2018 ◽  
Author(s):  
Eric K. Yamamoto
Keyword(s):  
National Security ◽  
Cautionary Tale ◽  
Rubber Stamp ◽  
Shadow Side ◽  
Judicial Scrutiny ◽  
Judicial Role

This chapter distills the book’s responses to two pivotal questions. If a sweeping, politically driven curtailment of fundamental liberties happens again, would the Korematsu majority’s highly deferential 1944 approach be expanded to new purposes to legitimize present-day transgressions of essential democratic liberties? Or would the courts undertake watchful care over those liberties by scrutinizing the government’s claim of necessity so that the talismanic incantation of national security itself does not enervate the judicial role? The chapter coalesces prior themes by first linking rubber-stamp judicial passivity to the deeply problematic shadow side of national security law; second by highlighting Korematsu and its coram nobis reopening as a cautionary tale; third, by repudiating Korematsu’s unconditional deference to the government’s claim of necessity; fourth by implicating judicial legitimacy in affirming Korematsu’s stated commitment to careful judicial scrutiny; and finally, by moving toward justice by breaking a key link in the chain of enduring injustice.

scholarly journals Changing the rules of the game: some necessary legal reforms to United Kingdom intelligence

2009 ◽  
Vol 35 (4) ◽  
pp. 943-955 ◽  
Author(s):  
IAN LEIGH
Keyword(s):  
National Security ◽  
The Political ◽  
Legal Proceedings ◽  
Legal Reforms ◽  
Political Independence ◽  
The Us ◽  
Protection Of Human Rights ◽  
The Government ◽  
The Uk ◽  
Rules Of The Game

AbstractThis article argues that there is a need to modernise the law governing accountability of the UK security and intelligence agencies following changes in their work in the last decade. Since 9/11 the agencies have come increasingly into the spotlight, especially because of the adoption of controversial counter-terrorism policies by the government (in particular forms of executive detention) and by its international partners, notably the US. The article discusses the options for reform in three specific areas: the use in legal proceedings of evidence obtained by interception of communications; with regard to the increased importance and scle of collaboration with overseas agencies; and to safeguard the political independence of the agencies in the light of their substantially higher public profile. In each it is argued that protection of human rights and the need for public accountability requires a new balance to be struck with the imperatives of national security.

Self-employed surfers, universal credit and the minimally decent life

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Christopher Rowe
Keyword(s):  
Social Security ◽  
Low Income ◽  
Judicial Review ◽  
The Self ◽  
Tax Credits ◽  
Minimum Income ◽  
Wage Labour ◽  
The Social ◽  
Decent Life ◽  
The Government

Abstract As part of its response to Covid-19 the government paused the use of the ‘Minimum Income Floor’ (MIF), which restricts the Universal Credit (UC) entitlement of the self-employed. This paper places the MIF in the wider context of conditionality in the social security system and considers a judicial review which claimed that the MIF was discriminatory. The paper focuses on how UC affects the availability of real choices for low-income citizens to limit or escape from wage labour, with two implications of the move to UC highlighted. First, the overlooked labour decommodifying aspect of tax credits, which provided a minimum income guarantee and a genuine alternative to wage labour for people who self-designated as ‘self-employed’, even if their earnings were minimal or non-existent, has been removed. Secondly, UC has in some respects improved the position of low-paid wage labourers in ‘mini-jobs’, who are not subject to conditionality once they work for the equivalent of approximately nine hours a week on the minimum wage.

Government Officials, Academics, and the Process of Formulating U.S. National Security Policy Toward Africa

1990 ◽  
Vol 19 (1) ◽  
pp. 5-20
Author(s):  
Larry W. Bowman
Keyword(s):  
Foreign Policy ◽  
National Security ◽  
Policy Making ◽  
Security Policy ◽  
Phone Call ◽  
Government Officials ◽  
Policy Issues ◽  
The Government ◽  
Research Contract ◽  
The U.S

Relationships between U.S. government officials and academic specialists working on national security and foreign policy issues with respect to Africa are many and complex. They can be as informal as a phone call or passing conversation or as formalized as a consulting arrangement or research contract. Many contacts exist and there is no doubt that many in both government and the academy value these ties. There have been, however, ongoing controversies about what settings and what topics are appropriate to the government/academic interchange. National security and foreign policy-making in the U.S. is an extremely diffuse process.

V The Verification of Technical Reserves in Non-Life Insurance

1971 ◽  
Vol 20 (01) ◽  
pp. 51-53
Author(s):  
C. M. Stewart
Keyword(s):  
Life Insurance ◽  
Risk Groups ◽  
Insurance Companies ◽  
Life Assurance ◽  
Careful Scrutiny ◽  
Sufficient Detail ◽  
Satisfactory Method ◽  
Claim Frequency ◽  
The Government ◽  
Do So

The reader of this note will know well the method used in the U.K. for the verification of technical reserves (i.e. the net liability) in life assurance. The net liability must be calculated by a qualified actuary and the methods and bases used must be described in sufficient detail in Schedule 4 of The Insurance Companies (Accounts and Forms) Regulations 1968 for their suitability to be apparent from a careful scrutiny of these and the other financial statistics submitted in accordance with the Regulations. As the data are made public, this scrutiny can be made not only by the Government Actuary in advising the supervisory authorities at the Department of Trade and Industry, but also by any other qualified actuary who cares to do so, which is an equally important discipline. Under this system, the maximum freedom can be allowed to the company and its actuary, but there has hitherto been no equally satisfactory method available for the objective scrutiny of non-life technical reserves. However, the new Claim Frequency Analyses and Claim Settlement Analyses prescribed in Parts II and III of Schedule 3 to the 1968 Regulations should go a long way towards remedying this deficiency. These analyses are to be supplied separately for each class of insurance in each of a company's main markets, and separately for such risk groups within each class as the company decides to be appropriate.

scholarly journals Election Security and Violence in Ghana: The Case of Ayawaso West Wougon and Talensi By-elections

2020 ◽  
pp. 32-46
Author(s):  
Frank Bitafir Ijon
Keyword(s):  
Content Analysis ◽  
Political Parties ◽  
National Security ◽  
Voter Turnout ◽  
Vital Role ◽  
Analysis Method ◽  
Content Analysis Method ◽  
Security Challenges ◽  
The Government ◽  
Election Violence

Conducts of by-elections in recent times have been fraught with a lot of security challenges. This has been as a result of the violence that characterized the conduct of by-elections in recent times in Ghana. Violence during by-elections in Ghana plays a vital role in securing election victories for political parties. In all the by-elections characterized by violence in Ghana, they were won by parties that were accused of inciting the violence. The main tenets of election violence as identified by the paper included, actors, motives, timing, consequences, and patterns. The paper adopted the content analysis method in its investigation of the two violent by-elections in Ghana. The paper revealed that there was a correlation between violence during by-elections and victories of incumbent parties. This was because, in the two by-elections understudy, those accused of starting the violence and using national security operatives won the elections. The paper also found out that by-election violence impacted negatively on Ghana’s democratic maturity in several ways, such as; low voter turnout, weakening of democratic foundation and breeding an atmosphere of insecurity. Finally, the paper also revealed that political parties especially those in government resort to violence during by-elections in Ghana because they fear losing it will mean the government was underperforming as argued out by Feigert and Norris and also because they want to add to their tally in parliament.

scholarly journals Through a Glass Darkly: The Role and Review of "National Security" Concepts in Canadian Law

2015 ◽  
Author(s):  
Craig Forcese
Keyword(s):  
Public Policy ◽  
Decision Making ◽  
National Security ◽  
Administrative Law ◽  
The Public ◽  
Precise Meaning ◽  
Canadian Law ◽  
Real Importance ◽  
The Government

The expression "national security" or its close similes lacks a precise meaning, even in the public policy literature. Nevertheless, the concept appears in over 30 federal statutes. In most instances, the term is undefined, an important oversight in light of the significant powers these statutes accord the government. Under these circumstances, how courts review government invocations of "national security" is of real importance. With some exceptions, courts applying s. 7 of the Charter and standard administrative law doctrines have accorded substantial deference to government national security determinations. When largely deferential substantive review of the ambiguous concept of national security is coupled with the ex parti and in camera context in which these cases are often heard, the net effect is to leave government with a freer hand in national security matters than in other domains of administrative decision making. Several possible responses to this problem are proposed.

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