The "Observer Effect": On the Role of Courts in National Security Cases

Over at The New Republic’s Security States blog, I have a new essay up entitled, “Courts Influence National Security Without Doing a Single Thing.”  It begins:

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?

I describe two basic schools of thought on these questions: the “courts do and should provide little oversight” and the “it is imperative that courts oversee these policies and they do too little of it.”  Both sides seem to accept, though, that the courts’ role in influencing these policies is minimal. I argue that while courts don’t often intervene directly in national security disputes, they nevertheless play a significant role in shaping Executive branch security policies. I term this the “observer effect,” which 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 drives the Executive to alter, disclose, and improve those policies before courts actually review them. (To be clear: courts must periodically – and often unpredictably – step in to take jurisdiction over a case to trigger the observer effect.) While the observer effect doesn’t serve as the sole driver of national security policy change, it is an important phenomenon to understand – for example, if Congress attempts to legislate judicial oversight of the Executive’s targeted killing program.  Seeing 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, could affect how to structure such oversight.