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.

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 Shadow of Korematsu

2018 ◽  
Author(s):  
Eric K. Yamamoto
Keyword(s):  
World War Ii ◽  
National Security ◽  
Civil Liberties ◽  
Muslim Community ◽  
World War ◽  
Executive Orders ◽  
Guantanamo Bay ◽  
Legal Challenges ◽  
Indefinite Detention ◽  
Judicial Scrutiny

This chapter paints the arc of Fred Korematsu’s World War II resistance and legal challenge through his 1980s coram nobis case reopening and the 1988 Civil Liberties Act’s apology and reparations. It extends the arc over 9/11 controversies through Korematsu’s amicus brief in the Rasul Guantanamo Bay indefinite detention case and the Korematsu, Hirabayashi, and Yasui families’ brief in support of journalists’ efforts to stop threats of incarceration for protected speech and association activities in the Hedges case. The insights shared and prescriptions advanced in those friend-of-the-court briefs—particularly about the significance of judicial independence—are then enlivened by Judge Ambro’s poignant lessons-of-Korematsu opinion in the Hassan Muslim community harassment decision. The chapter closes by revisiting ongoing legal challenges to President Trump’s intensely contested 2017 exclusionary executive orders. It charts the Justice Department’s familiar refrain about the “unreviewable” nature of the executive’s national security justification—all the laws but one—as well as civil liberties groups’ constrasting advocacy for careful judicial scrutiny.

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