Finding National Security

John Greenman, University of Oregon

Abstract

Abstract: The U.S. national-security exception—the space in which the political branches can act without observing constitutional rights—is not substantive, but rather membership based. The exception does not, in other words, depend on the threat posed to our security.

Instead it depends on membership. Under membership, a suspect’s rights depend on his connection to the United States. This connection is determined by nationality and location. U.S. citizens and people inside the country—members—get more rights, while aliens and people outside the country—nonmembers—get fewer rights.

Using this frame I make three points about U.S. national-security law:

• First, in defining the national-security exception, the government is choosing membership over substance.

• Second, this choice is driven by politics. Politicians want to endorse strong national-security measures without the political risk of directing them at citizens at home. So they direct them at nonmembers. This choice has hurt substance. The current proposed models of the national-security exception—political deference and international law—do not substantively define the national-security exception.

• Third, the most plausible—and, I think best—way forward is for courts to require equal treatment of members and nonmembers unless practical considerations dictate otherwise. In fact, The Supreme Court is starting to do this.