Georgetown Security Law Commentary

Scholarship: "National Security Fact Deference"

"National Security Fact Deference" (Virginia Law Review, 2009) by Robert Chesney (Wake Forest University School of Law).  Judges frequently defer to the executive branch regarding disputed questions of fact in cases involving national security, but they do not frequently offer a coherent justification for doing so. This article tries to alleviate this uncertainty, in hopes of shifting the practice of national security fact deference onto more defensible grounds. Because national security considerations for the most part are sensitive to the circumstances of particular cases, we cannot and should not pursue a single model for resolving fact deference claims.  However, the article offers some theoretical insights on the motivations of judicial deference to the executive. By providing a coherent theoretical justification for supporting such claims in limited circumstances, these insights will help to identify and curb unwarranted claims.

Scholarship: "The Espionage Act and National Security Whistleblowing after Garcetti"

"The Espionage Act and National Security Whistleblowing after Garcetti" (American University Law Review) by Stephen I. Vladeck (American University Washington College of Law).  This article discusses whether government employees have a right to disseminate classified national security information if the information pertains to "unlawful secrets."  Because of the broad language of the Espionage Act and the narrow language of certain whistleblower laws, a government employee would enjoy no statutory protection. And because of the Supreme Court's constriction of the First Amendment rights of public employees in Garcetti v. Ceballos, the employee would not be entitled to a constitutional defense, either. The essay discusses the implications of Garcetti for public employee whistleblowers.

Scholarship: "The Rise and Spread of the Special Advocate"

"The Rise and Spread of the Special Advocate" (Public Law) by John Ip (University of Auckland).  The special advocate is a lawyer who is appointed to represent the interests of a person during proceedings in which the state relies on sensitive material that cannot be disclosed to that person. The article traces the origins of the special advocate procedure, its establishment in the United Kingdom, and its eventual spread to Canada and New Zealand. It then considers: (1) whether special advocates can be effective in ensuring fairness, given the constraints under which they operate; and (2) whether other issues related to their increased use militate against wider adoption.  HT to National Security Advisors.

Scholarship: "National Security Issues in Civil Litigation: A Blueprint for Reform"

"National Security Issues in Civil Litigation: A Blueprint for Reform" (Brookings) by Justin Florence and Matthew Gerke.  The article explains how cases involving state secrets work today in the civil, criminal, and administrative contexts, tracing the history of how American courts have handled these issues, and ending with an examination of some high-profile post-9/11 national security cases. It then offers specific suggestions for reform, presenting the options available to Congress, discussing their costs and benefits, and laying out a roadmap for reform.