Under the Constitution, the Congress has many express national security powers, just as the Executive branch does, and the FIS court itself, by its very existence, is supposed to be a judicial branch check on what is claimed as unilateral executive branch authority in the national security arena.

Indeed, the Courts have already set a standard by which national security interests are to be judged against the First Amendment — the clear and present danger standard. The precedent set by the Pentagon Papers case similarly acknowledges First Amendment limitations upon this claimed Executive Branch authority.

Making an argument that undermines the adjudicator’s own legitimacy seems a poor way for the government to win this argument.