Can Courts Review National Security?

On 9th June, Dr. David Scharia gave a talk to OxHRH members on whether courts could review national security.

In recent years, countries around the world introduced numerous national security programs and military campaigns. Yet, very few of these measures, despite the complex legal questions they raise have been the subject of rigorous judicial review, much less so in a manner that could actually affect these policies in real time. There are good reasons for this judicial absence. Nevertheless, the absence of real-time review has enormous effect on human rights, rule of law and on our national security.

Dr. Scharia argued that courts could play a much more dominant role in reviewing national security matters. Based on some lessons learned from the experience of the Israeli Supreme Court, Dr. Scharia demonstrated how intensive and authentic real time dialogue with the Executive (in particular, the Attorney General, the military and the intelligence community) and the development of unconventional judicial review practices could help courts guide the Executive in real time on national security matters –  often when forces are still fighting, interrogees are still interviewed and hostages are still taken. The key to more rigorous review of national security is for courts to adopt a more flexible, cravat ice and dynamic approach to the judicial review process.