Hurdles, Hurdles, and More Hurdles: Strategic Litigation in National Security Cases

ABSTRACT Civil society organizations are adept and reactive advocates, using a range of strategies to promote their messages and respond to negative outcomes. For instance, even when unsuccessful in bringing legal arguments before the courts, such organizations can still use litigation as a platform for positive legal outcomes. In the national security context, however, things are not as straightforward. This piece analyses three unique ‘hurdles’ civil society organizations face in this context – judicial deference, lack of access to information, and secrecy – meaning their response to unsuccessful litigation becomes even harder. This piece provides an overview of current practice, while remaining optimistic for civil society’s response to the ‘hurdles’; concluding that, while a hard race to win, civil society can still prevail.