UVA's (and Lawfare's own) Ashley Deeks has posted a new article to SSRN, "The Observer Effect: National Security Litigation, Policy Changes, and Judicial Deference," forthcoming (November 2013) in Fordham Law Review. 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.
I had a chance to read this paper on a train last night returning, as it happens, from a workshop at Fordham Law School, whose law review is publishing it. I agree with Ashley that the deference debate has reached a stalemate - but what's interesting about the paper is her claim of the "observer effect," which says that even without directly intervening in cases, the concern that they might do so is enough to alter executive branch behavior and forces the executive branch to hedge its policies on account of uncertainties. Rather than viewing courts as having a rather minimal role in shaping executive branch national security policies, this paper suggests that the ripple effects of uncertainties as to if, when, and how courts might intervene in national security disputes have considerably more effects than might have been thought.