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In seeking to insulate national security conduct from external review, executive officials often publicize self-imposed rules that appear to subject their authority to familiar, well-established legal standards from constitutional or international law. But executive officials sometimes invoke such standards in public while deviating from prevalent interpretations of those constraints in secret. The effect is to mislead courts, policymakers, and the public about the extent to which national security actions threaten individual rights and democratic values. “Rule of law tropes” lead observers to draw false equivalences across legal contexts, obscuring hard questions surrounding liberty and security, and ultimately undermine the rule of law. This Essay critiques the national security executive’s deployment of rule of law tropes, with a primary focus on one striking but barely noticed example: the Executive’s invocation of, and secret departures from, a “reasonable suspicion” standard for placing individuals on the terrorist watchlist.
* John A. Wilson Faculty Scholar, Assistant Professor of Law, Stanford Law School. For generous and insightful comments, I thank Bob Weisberg, Aziz Huq, Rebecca Ingber, Jeffrey Kahn, Anne O’Connell, David Pozen, Wadie Said, Jane Schacter, Sudha Setty, David Sklansky, Allen Weiner, and participants at the Stanford Law School Grey Fellows Forum, Columbia Law School National Security Law Workshop, Law and Society Conference, and Berkeley Public Law Workshop. I also benefited from Ruhan Nagra’s excellent research assistance and from prodigious editing by the Harvard Law Review.