This article contends that the underlying normative assumptions of civil libertarians and national security “executive unilateralists” are premised on a variant of the “nirvana fallacy.” In other words, civil libertarians generate a best-case scenario for rigorous judicial oversight over executive action during emergencies and compare it to the worst-case scenario for executive action; the reverse holds true for executive unilateralists. In practice, the Supreme Court of the United Kingdom has been cognizant of the institutional advantages and limitations of its office when it adjudicates national security disputes, and has not succumbed to the criticisms of scholars in either camp. Instead, since the September 11th terrorist attacks, there has been a strong correlation between the degree of judicial deference displayed to the executive on national security matters and the information made available to the Court. In other words, the intensity of the judicial oversight of various counter-terrorism measures increases when an emergency wanes and the Court receives credible information that the impugned governmental measures are ineffective or unnecessary in addressing the perceived national security threats.
Po J. Yap,
The U.K. Supreme Court at War,
24 Wash. Int’l L.J.
Available at: https://digitalcommons.law.uw.edu/wilj/vol24/iss2/13