The Observer Effect: National Security Litigation, Executive Policy Changes, and Judicial Deference

73 Pages Posted: 11 Oct 2013 Last revised: 5 Nov 2013

Ashley Deeks

University of Virginia - School of Law

Date Written: October 10, 2013

Abstract

The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong. This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play a significant role in shaping executive branch security policies. 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 executive is highly sensitive to looming judicial oversight in the national security arena, and establishes or alters policies in an effort to avert direct judicial involvement. By identifying and analyzing the observer effect, this Article provides a more accurate positive account of national security deference, without which reasoned normative judgments cannot be made. This Article makes another contribution to the literature as well. By illustrating how the uncertain, but lurking, threat of judicial decisions spurs increasingly rights protective policy decisions by the executive, it poses a rejoinder to those who are skeptical that law constrains the executive.

Keywords: National security, Judicial deference, Executive branch, Terrorism, September 11

Suggested Citation

Deeks, Ashley, The Observer Effect: National Security Litigation, Executive Policy Changes, and Judicial Deference (October 10, 2013). 82 Fordham L. Rev. 828 (2013); Virginia Public Law and Legal Theory Research Paper No. 2013-41. Available at SSRN: https://ssrn.com/abstract=2338667

Ashley Deeks (Contact Author)

University of Virginia - School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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