National Security Determinations: Executive vs. Judicial Competence

Many common law jurisdictions accept that the court is not an appropriate forum to determine matters of national security. Note that I am referring to national security issues and NOT national security offences. There is a vital difference.

In the United States, this difference has been recognised and accepted for decades. Supreme Court cases from Navy vs Egan (1988) to Holder vs Humanitarian Law Project (2010) to the most recent case of FBI vs Fazaga (2022) have confirmed repeatedly that national security risk assessments fall within the exclusive competence of the executive branch because they require predictive judgments based on sensitive intelligence.

Courts may not second-guess these determinations as they lack the necessary institutional competence to evaluate sensitive intelligence or threat assessments. It follows that there is a clear and necessary distinction between executive national security determinations and the judicial adjudication of national security crimes.

The position in Britain is no different. In the landmark case of Secretary of State for the Home Department vs Rehman (2001), the House of Lords, then Britain’s highest court, reaffirmed the principle that identifying a threat to national security is an executive function, not a judicial one, and that the courts cannot substitute their own assessment of national security risk for that of the home secretary’s.