One of the most persistent fights in the national security arena since the September 11 attacks has been about the proper allocation of power between two branches of government: the Executive and the courts. Specifically, how much authority does and should the Executive Branch have to establish and implement national security policies, and how much oversight can and should courts provide over these policies?
People tend to divide into one of two schools of thought when answering these questions. The first school favors extensive deference to Executive branch national security decisions and celebrates what it sees as a limited role for courts. The Executive, this school contends, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. After all, Alexander Hamilton famously remarked that housing powers in a unitary executive provides the advantages of “[d]ecision, activity, secrecy, and dispatch”—qualities our federal courts simply don’t have.
The other school of thought bemoans such judicial deference, even as this school admits that it occurs. Members of this school fear that this deference will undercut individual rights, leaving the Executive to maximize security over liberty again and again. This school also worries more broadly about creating an imbalance in the separation of powers: an unchecked Executive can impose draconian security measures without a reliable counter-weight. But both sides assume that the courts’ role in influencing security policy is minimal.
Both sides are wrong.
While courts rarely intervene directly in national security disputes, they nevertheless play a significant role in shaping Executive branch security policies. Let’s call this the “observer effect.” Physics teaches us that observing a particle alters how it behaves. Through psychology, we know that people act differently when they are aware that someone is watching them.
In the national security context, the “observer effect” can be thought of as the impact on Executive policy-setting of pending or probable court consideration of a specific national security policy. The Executive’s awareness of likely judicial oversight over particular national security policies—an awareness that ebbs and flows—plays a significant role as a forcing mechanism. It drives the Executive to alter, disclose, and improve those policies before courts actually review them.
Take, for example, U.S. detention policy in Afghanistan. After several detainees held by the United States asked U.S courts to review their detention, the Executive changed its policies to give detainees in Afghanistan a greater ability to appeal their detention—a change made in response to the pending litigation and in an effort to avoid an adverse decision by the court. The Government went on to win the litigation. A year later, the detainees re-filed their case, claiming that new facts had come to light. Just before the government’s brief was due in court, the process repeated itself, with the Obama Administration revealing another rule change that favored the petitioners. Exchanges between detainees and their personal representatives would be considered confidential, creating something akin to the attorney-client privilege. Thus we see the Executive shifting its policies in a more rights-protective direction without a court ordering it to do so.
Other examples of the observer effect abound. In 2005, the Executive decided to reveal the processes by which it negotiated “diplomatic assurances” to return Guantanamo detainees to foreign countries, in an effort to fend off court decisions delaying those returns. The Government might well have won in court even without these revelations – the precedents suggested that it would have—but it hedged its bets by persuading the courts that it had in place a thorough process to ensure that the United States did not expose detainees to likely mistreatment in the receiving country.
Here’s another example: in the face of some adverse lower court decisions (which the Government ultimately won on appeal), the Government curtailed its own use of the “state secrets” privilege. That’s a privilege the government may invoke when a lawsuit raises legal challenges that cannot be proven or defended without disclosing information that would jeopardize U.S. national security. And the Government altered the policies pursuant to which it uses secret evidence to deport aliens, due in part to critical language in court decisions, even though the Government likely would have won the cases on the merits.
When should we expect to see the observer effect? In general, we should look for three things. First, there must be a triggering event. This ranges from the filing of a non-frivolous case, to some indication from a court that it may reach the merits of a case (i.e., ordering briefing on an issue, or rejecting the government’s motion for summary judgment), to the court’s consideration of the issue on the merits. The observer effect most clearly comes into play when a court becomes seized with a national security case after an extended period of judicial non-involvement in security issues, such as when federal courts started to consider the type of person the Executive lawfully may detain on the battlefield. The observer effect then kicks in to influence the Executive’s approach to the policy being challenged in the triggering case, as well as to future (or other pre-existing) Executive policies in the vicinity of that triggering case.
Second, future uncertainty plays a critical role in eliciting the observer effect. In some cases, the question for the Executive will be whether a court will conclude that it can or should exercise jurisdiction over a case. In other cases, Executive uncertainty will exist when it is not obvious what law will govern the dispute at issue, or where there is little precedent to guide the courts in resolving the dispute. It is this uncertainty that leaves the Executive with doubt about whether it will win the case, and that creates incentives for the Executive to alter its policies in anticipation of litigation or its outcome. After all, there are real advantages to the Executive in retaining the power to shape these national security policies, even under a potentially watchful eye of the courts.
The third factor that helps secure the observer effect’s operation is the likelihood of future litigation on related issues. If a court declines to defer to the Executive in a particular case, that decision is unlikely to create an observer effect if the Executive has confidence that the factual and legal questions at issue in that case will not arise again. In contrast, when the Executive perceives that a set of policies is likely to come under sustained litigation (and thus under the potential oversight of multiple judges over time), it is more likely to concertedly review—and alter—those policies.
When these three elements are present, the observer effect is likely to come into play. How does the Executive react? The Executive attempts to maximize the total value of two elements: a sufficiently security-focused policy and unilateral control over national security policymaking. To achieve this goal, the Executive often is willing to cede some ground on the first element to retain the second element. The Executive therefore often responds to the presence of these three elements by shifting its policy to a position that gives it greater confidence that the courts would uphold it if presented with a challenge to that policy. This does not mean that it will establish or revise its policy to a point at which it has full confidence that a court will deem the policy acceptable. Instead, the Executive has strong incentives to take a gamble: all it needs to do is establish a policy that is close enough to what a court would find acceptable that it alters the court’s calculation about whether to engage on the merits. It is, in short, a governmental game of chicken.
I don’t want to suggest that a potentially adverse decision by a court is the sole driver of Executive policy-making. While courts may be one important audience for national security policies, there are many other audiences, including Congress, the general public, the media, and elites. Proving what causes the Executive to select or modify a particular policy is notoriously difficult because many factors and influences usually coalesce to produce government policy. But important pressures are brought to bear by an increased Executive awareness of possible court intervention, especially because courts have the power to rewrite national security policies in a way that members of the public and the media do not.
One important lesson to draw from the observer effect is that it matters what signals the courts and the Executive send to each other and how they send them. When courts hear cases on the merits or when Justices issue statements related to denials of certiorari, they have the opportunity to initiate a dialogue with the Executive—whether or not the courts ultimately defer to the Executive’s position. That dialogue allows the courts to gesture at acceptable and unacceptable policy choices, while the Executive gauges which policies to adopt and how large of a “cushion” to build into those policies to avoid future adverse decisions. For instance, when Justice Kennedy (along with two other Justices) concurred in the denial of certiorari in a case called Padilla v. Hanft, his concurrence implied that the Court would step in to hear the case if the Executive, which had shifted Jose Padilla from military custody to civilian custody, re-detained Padilla as an enemy combatant. This allowed the Court to send a strong signal to the Executive about a national security policy that the Court would have a hard time upholding.
The observer effect has real-world implications for national security policy changes on the horizon. For example, if Congress attempts to establish judicial oversight of the Executive branch’s targeted killing program, it is useful to understand the nuanced ways in which the Executive can and does respond to potential—but somewhat uncertain—judicial oversight and decisions, even those that stop short of adjudicating issues on the merits. In shedding light on the Executive/judicial relationship, the observer effect should inform Congressional considerations in crafting such a court.
It is true that courts have decided only a limited number of substantive issues in the national security arena, notwithstanding the continuing proliferation of litigation. However, important substantive policy changes have occurred since 2002—changes due not to the direct sunlight of court orders, but to the shadow cast by the threat or reality of court decisions on Executive policymaking in related areas of activity. Court decisions, particularly in the national security realm, have a wider ripple effect than many recognize because the Executive has robust incentives to try to preserve security issues as its sole domain. In areas where the observer effect shifts Executive policies closer to where courts likely would uphold them, demands for deference by the Executive turn out to be more modest than they might seem if considered from the isolated vantage of a single case at a fixed point in time. It remains critical for courts to police the outer bounds of Executive national security policies, but they need not engage systematically to have a powerful effect on the shape of those policies and, consequently, the constitutional national security order.
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