Sen. Cornyn's Daily Question for Judge Sotomayor

Press Release

Sen. Cornyn's Daily Question for Judge Sotomayor
Question 3: Tuesday, June 16, 2009

How much should courts defer to the judgment of Congress and the Executive Branch in the area of national security?

Explanation: The role of the courts in the War on Terror is a topic of great interest to the United States Senate and to the American people. Historically, Congress and the Executive branch have taken the lead role in finding the proper balance between national security and civil liberties. When Congress and the Executive work together, the courts have traditionally played a modest role. See, e.g., Department of Navy v. Egan, 484 U.S. 518, 530 (1988) (noting that "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs").

In Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), however, Judge Sotomayor joined an opinion striking down a 2006 federal law that required courts to defer to the Executive branch's assessment of national security threats in some instances. That law was part of the USA Patriot Act Improvement and Reauthorization Act that passed the Senate overwhelmingly by a vote of 89-10. The provision challenged involved requests for information known as National Security Letters ("NSLs") that investigators in terrorism cases can serve on phone companies and Internet service providers to gather evidence about how suspects are communicating.

Under the framework that Congress passed in 2006, recipients of NSLs are initially prohibited from disclosing the existence of an NSL if senior FBI officials certify that the disclosure may result in danger to the national security related to international terrorism or clandestine intelligence. 18 U.S.C. § 2709(c)(1). An NSL recipient wishing to disclose the existence of the NSL is required to petition a court to set aside the nondisclosure requirement, and the court can set aside the nondisclosure requirement if it finds on the merits that no such danger was actually presented. However, the 2006 law permits the Director of the FBI or the very top echelon of Justice Department officials to re-certify, at the time challenge was made, that disclosure poses a danger to national security. Courts are then required to defer to this judgment unless the court determines that the recertification was made in bad faith. 18 U.S.C. § 3511(b).

In Doe v. Mukasey, Judge Sotomayor joined an opinion holding that this careful arrangement is unconstitutional. According to the opinion, the deference to the FBI Director or top DOJ official does not allow for sufficiently meaningful judicial review. "[S]ome demonstration from the Executive Branch of the need for secrecy" is required, and "the fiat of a governmental official, though senior in rank" is insufficient to demonstrate the government's national security interest. 549 F.3d at 882. By requiring courts to defer, the opinion suggests, the Judiciary has "become the handmaiden of the Executive" in a way that the court asserted is unconstitutional. The court therefore held that the nondisclosure provisions requiring deference are unconstitutional. See id. at 883.

Doe v. Mukasey is notable for the court's lack of deference to a carefully crafted statutory scheme in the area of national security. Congress designed the disclosure provisions for NSLs to balance the interest of national security and the First Amendment. The Senate's lopsided vote in favor of the law suggests that Congress did not see certification by the Director of the FBI or other similarly high-ranking official as merely "the fiat of a government official" that reduced the role of the courts to that of "handmaiden to the Executive."

More broadly, this case raises profoundly important questions about the role of the courts in the War on Terror. One of them is this: Does Judge Sotomayor believe that the Constitution permits any deference to the elected branches in the area of national security?

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