We Americans tend to think that serious grievances deserve a day in court. Yet here in America — unlike some of our allies — courts have eroded access to justice for people injured by misguided national security efforts.
We see the centrality of courts in action every day, from the Supreme Court’s decision on Obamacare this spring to George Zimmerman facing trial for killing Trayvon Martin in Florida. Getting one’s day in court is not a guarantee of victory. But it is fundamental to holding our government and each other accountable.
On Oct. 29, the Supreme Court will hear oral argument in Clapper v. Amnesty International, a case about dragnet domestic surveillance unsupported by warrants. The court’s decision will largely determine whether this aspect of counterterrorism will remain subject to courts, or instead be placed above them.
Over the last decade, judges have repeatedly told torture victims that they don’t have the right to a day in court when they seek compensation. Even when victims have substantial publicly available evidence to support their claims, our government and its private contractors have remained above the law.
Under most circumstances, these plaintiffs would have their day in court. Our constitutional and civil rights demand that. But when it comes to national security, the Bush and Obama administrations asked courts to toss these cases, even before plaintiffs have a chance to share their side of the story, invoking the state secrets privilege and other procedural hurdles.
The courts have been entirely complicit, abdicating their role of providing a forum in which these claims can be heard. Instead of examining the facts and applying the law, our courts routinely dismiss cases at the earliest stages.
American courts have been overly formalistic, nervous and sheepish, consistently bowing before government claims that allowing (even potential) accountability for human rights abuses would somehow be tantamount to inviting terrorism.
Even worse, judges have accepted these claims with little question, washing their hands of the tough business of demanding that our government justify its actions. They echo the misplaced judicial deference that affirmed our government’s decision to intern Japanese Americans during World War II.
Yet other countries facing national security issues for decades have already developed successful alternatives. The Israeli Supreme Court has addressed many security-related claims since its founding. It hears a case if at all possible, and deals with issues related to secret information as they arise. None of this guarantees a favorable outcome for a plaintiff, but it does give everyone their day in court.