Lecture 2: The Case Against “National Security”

A doctrinal anomaly formulated to safeguard nuclear secrets has metastasized into a broad non-justiciability regime, and one of the more secure societies in human history has been kept in a state of a legal emergency. The institutional and emotional incentives that underlie these developments can seem insurmountable, but they must be more effectively challenged by competing norms.
In the two decades since the 9/11 attacks, national security law has moved from the fringes of law school curricula to a privileged position in the legal academy that has helped obscure the profoundly anti-democratic nature of the national security project itself.
These Castle lectures will highlight the myriad ways in which national security law has weakened democratic accountability: by deeming critical questions about the limits of executive power “nonjusticiable”; by deploying secrecy doctrines to ensure the impunity of senior officials; by excluding the public from vital debates and decisions affecting core liberties; by subordinating independent judicial review to the putative “expertise” of national security officials; and by engaging in hyperbolic risk inflation to secure broad compliance with the above.
The lectures will address these themes through the lens of litigation brought by the author and others in the years following 9/11. They will argue that if the core tenets of national security law are not more effectively challenged, we risk enshrining a state of permanent constitutional exception.
Ben Wizner is the director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project. In more than two decades at the ACLU, Wizner has litigated numerous significant cases at the intersection of human rights and national security, including challenges to surveillance practices, government watch lists, targeted killing, and torture. Since 2013, he has been the principal legal advisor to NSA whistleblower Edward Snowden.