The Constitutional Foundation for Fact Deference in National Security Cases

I have been running the University of Virginia National Security Law Institute each June since 1991 to train professors and government lawyers to teach and work in this emerging field of law. Professor Robert Chesney attended the 2004 Institute and has been a regular instructor in the program since then. I have encountered no young national security law scholar who in my view rivals his considerable talents. I was thus not surprised to find that he has contributed a very thoughtful and insightful article to the Virginia Law Review.

Professor Chesney is certainly correct that national security fact deference claims “implicate competing values of great magnitude,” and thus warrant careful attention. He categorizes such claims under four headings, the last of which are claims involving “the concern that the law vests decisionmaking authority in another institution.” My space is limited, so I will focus on that aspect of the issue.