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The Role of the Courts in Homeland Security
The courts, especially the United States Supreme Court, have a major impact on homeland security. In this section we examine to what extent the courts should be involved in the political decision to wage war against terrorists.
Article III, Section 2 of the Constitution provides for the oversight of the courts over cases dealing with national security by granting the them jurisdiction “arising under” federal constitutional and statutory law, treaties, cases involving diplomatic personnel, and admiralty and maritime cases. We can gain great insight into how the court might view its role in homeland security by reading what the court has seen as its role with regard to the military. In the case of Hirabayashi v. United States, 320 U.S. 81 (1943) the court said in its opinion:
Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it...[i]t is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.
And in the 1973 case of Gilligan v. Morgan, 413 U.S. 1 (1973) The court stated:
[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.
Referenced for further research, reading, and discussion are a couple of cases in which the Supreme Court has gotten involved in the legal authority of the executive branch while at the same time it trying to stay out of political questions. In 1918 the U.S. Supreme Court rejected a host of challenges to the draft. More interesting to read is the short case of Mora wherein the court justices debate whether they should hear a challenge by three privates being drafted and deployed during Vietnam, arguing that it was an illegal action.
Student Activities and Assessment Tools
  • Have the students read the case of Mora v. McNamara and debate its merits on the requirement to have a declared war. The petitioners were drafted into the United States Army in late 1965, and six months later were ordered to a West Coast replacement station for shipment to Vietnam. They brought suit to prevent the Secretary of Defense and the Secretary of the Army from carrying out those orders, and requested a declaratory judgment that the present United States military activity in Vietnam is "illegal." The District Court dismissed the suit, and the Court of Appeals affirmed. Now the students will read what happened at the United States Supreme Court. You may wish to use the assessment form provided.
  • Debate the appropriateness of non-elected judicial officials getting involved in political “hot potatoes” —including the very recent cases of U.S. citizen Jose Padilla accused of being an enemy combatant (discussed in a later section of this module) and the 600 foreign al-Qaeda and Taliban detainees at Guantanamo Bay. You may wish to use the assessment form provided.