The U.K. Supreme Court at War

I. INTRODUCTIONIn wake of September 11th terrorist attacks (9/11) and similar tragedies across globe, governments around world have responded by passing a slew of legislative sanctions that seek to combat this global national security threat.1 The United Kingdom's government, like many of its foreign counterparts, has frequently contended that, in times of national crisis, democracies must recalibrate their institutional processes and reinterpret their legal norms to accept more intrusive encroachments on personal liberty that would usually be considered unacceptable during normal times.2 The British judiciary, in particular Supreme Court (and Appellate Committee of House of Lords), has also entered fray as they are tasked to review and rule on legality of several contentious governmental measures.3 However, as these judges sit at trial, they too also stand trial4 when their decisions are judged in court of public opinion and are critiqued within walls of academia.Unsurprisingly, commentators have published a plethora of academic literature on how courts should address these legal challenges against governmental counter-terrorism efforts.5 However, this discourse on national security has been dominated by assertions of two polarized factions. On one side, we have unilateralists6 who argue that courts-especially during emergencies or periods of crisis-should generally defer to governmental determinations on national security.7 These scholars contend that delay and uncertainty would result from review of national security disputes and impose unacceptable costs on executive power. Furthermore, judicial deference is both desirable and predictable, given high stakes and judges' limited information and competence.8 On other side, we have civil libertarians who insist that judges should never acquiesce to governmental intrusions on human rights, even in times of public emergencies, and that courts must be vigilant and provide robust oversight over state action at all times.9 They believe that public bodies tend to overreact and that the government's own assessment may be colored by fear of electoral response and-less charitably-by calculations of electoral advantage,10 such that it is vital for courts to subject assertions of executive to searching examination.11A central purpose of this article is to show why both opposing, strident views are normatively untenable and unsustainable, and why it is unsurprising that neither viewpoint has been accepted in practice by House of Lords and its succeeding body, Supreme Court (hereinafter referred to collectively as the Court) in post-9/11 cases. It is my contention that underlying normative assumptions of scholars in both camps are premised on a variant of nirvana fallacy. Civil libertarians generate a best-case scenario for rigorous oversight of executive action during emergencies and compare it to worst-case scenario for executive action, while reverse holds true for executive unilateralists. Realistically, judges on Court are insulated from political winds and are arguably more impartial in reviewing challenges to governmental action. However, they are comparatively more limited in their access to requisite national security information and lack training to make predictive risk assessments on necessity of national security measures. On other hand, while it is equally true that, in times of crisis, executive branch possesses speed, secrecy, flexibility, and efficiency that no other governmental institution can match,12 need to assuage public fear and moral panics may distort objectivity of executive's assessments. The main trade-off in institutional design of security policy is between freedom from bias and information.13This article contends that Court has been generally cognizant of institutional advantages and limitations of its office when adjudicating national security disputes, and has not succumbed to criticisms. …