National security fact deference

Virginia Law Review

Volumn 95, Issue 6, 2009, Pages 1361-1435

  Chesney, Robert M ^a  

^a UNIVERSITY OF TEXAS   (United States)

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EID: 71549145620     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (400)

1. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 329 (1936) (calling for deference to executive branch claims of authority to act in the realm of foreign affairs);
2. Weixum v. Xilai, 568 F. Supp. 2d 35, 37-38 (D.D.C. 2008) (deferring to executive branch policy judgment regarding immunity of foreign officials);
3. Thomas M. Franck, Political Questions/Judicial Answers (1992) (criticizing the judiciary's special treatment of foreign-relations cases);
4. Michael J. Glennon, Constitutional Diplomacy 314-21 (1990) (examining the political question doctrine);
5. Richard J. Pierce, Jr., Administrative Law Treatise 768-814 (4th ed. 2002) (surveying the law relating to judicial review of agency factfinding);
6. John O. McGinnis & Charles W. Mulaney, Judging Facts Like Law: The Courts versus Congress in Social Fact-Finding, 25 Const. Com. 60 (2008) (discussing deference to legislative fact-finding);
7. Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 Yale L.J. 1170, 1193-217 (2007) (calling for deference to executive interpretations of statutes relating to foreign affairs);
8. David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. Ann. Surv. Am. L. 497 (2007) (critiquing deference to executive treaty interpretations based on historical practice).
9. See generally William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083 (2008) (surveying deference doctrines).
10. Notable exceptions include David L. Franklin, Enemy Combatants and the Jurisdictional Fact Doctrine, 29 Cardozo L. Rev. 1001 (2008);
11. Jonathan Masur, A Hard Look or a Blind Eye: Administrative Law and Military Deference, 56 Hastings LJ. 441 (2005);
12. Daniel J. Solove, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 Iowa L. Rev. 941 (1999).
13. Paul Horwitz recently observed that such under-theorization is a problem more generally for deference as a "transsubstantive tool of constitutional law." Paul Horwitz, Three Faces of Deference, 83 Notre Dame L. Rev. 1061,1066 (2008).
14. The role of fact deference in this setting has been obscured by debate regarding federal court habeas jurisdiction over Guantánamo detainees. See Boumediene v. Bush, 128 S. Ct. 2229 (2008).
15. For an overview of the facts in Yaser Hamdi's case, see Hamdi v. Rumsfeld, 542 U.S. 507,510-14 (2004).
16. See Brief for Respondents-Appellants at 11, Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002) (No. 02-6895), 2002 WL 32728567.
17. See id. at 13.
18. Here I use "functional" in the sense that Deborah Pearlstein describes as "effectiveness functionalism." See Deborah N. Pearlstein, Form and Function in the National Security Constitution, 41 Conn. L. Rev. (forthcoming July 2009), available at http://ssrn.com/abstract=1159595, at 6 (describing "purposive" functionalism as the pursuit of arrangements that best serve a larger constitutional goal and "effectiveness" functionalism as the pursuit of "immediate issues of effectiveness, efficiency, and the circumstantial needs of modern government").
19. See Brief for Respondents-Appellants, supra note 6, at 15-16 (citing Johnson v. Eisentrager, 339 U.S. 763,779 (1950)).
20. Id. at 30 ('"Not only do courts lack the expertise to evaluate military tactics, but they will often be without knowledge of the facts or standards upon which military decisions have been based.'")
21. quoting Tiffany v. United States, 931 F.2d 271,278 (4th Cir. 1991).
22. The government relied upon an earlier decision of the Fourth Circuit that had itself relied upon Federalist No. 26 for the proposition that "if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger [by the minority], and [the community] will have an opportunity of taking measures to guard against it," and Federalist No. 78 for the notion that the Judiciary has '"no influence over either the sword or the purse.'" See id. at 32 (citing Thomasson v. Perry, 80 F.3d 915, 924 (4th Cir. 1996)).
23. See Hamdi v. Rumsfeld, 296 F.3d 278,281-84 (4th Cir. 2002).
24. Id. at 283-84.
25. See id. at 283.
26. See id. at 283-84.
27. See Hamdi v. Rumsfeld, 243 F. Supp. 2d 527,532-34 (E.D. Va. 2002).
28. See id. at 532-36.
29. Hamdi v. Rumsfeld, 316 F.3d 450, 463, 474 (4th Cir. 2003). The court also noted prudential concerns regarding disruption of military operations.
30. See id. at 465-66 (citing risk of commanders being called into court from the field);
31. id. at 471 (citing impact on military "efficiency and morale," and the sheer logistical difficulties involved in trying "to acquire evidence from far away battle zones"); id. at 474 (same).
32. Id. at 473.
33. See Brief for Petitioners at 21-26, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696) (arguing that deference undermined separation of powers values by emasculating judicial review of executive detention authority);
34. Brief for the Respondents at 25-27, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696) (arguing that eligibility for detention is a military judgment exclusively allocated to the executive branch, that the executive has superior competence to make such judgments, and that the judiciary lacks the political accountability that ought to attend such determinations).
35. Hamdi v. Rumsfeld 542 U.S. 507, 528-32 (2004) (citing judicial review as a check on the risk of executive abuse, but also noting that "core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them" and that judicial inquiry into the facts not only runs a risk of disrupting the war effort but also may prove to be in vain).
36. See id. at 535-36 (holding that "we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government"); see also id. at 536-37 (concluding that "it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge").
37. See id. at 534-35.
38. Id. at 532.
39. Id. at 533.
40. See id. at 533-34. Only Justice Thomas wrote to support the government's position on deference.
41. See id. at 579 (Thomas, J., dissenting) ("This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision."). Justice Thomas argued that courts lack the information available to the executive branch and that "even if the courts could compel the Executive to produce the necessary information, such decisions are simply not amenable to judicial determination because '[t]hey are delicate, complex, and involve large elements of prophecy.'"
42. Id. at 583
43. (quoting Chicago & S. Air Lines v. Waterman S.S. Corp, 333 U.S. 103, 111 (1948) (calling for deference to Presidential judgments regarding diplomatic consequences of granting a license for international air travel)).
44. See id. at 580 (Thomas, J., dissenting) (arguing that the Founders intended for the President to have primary responsibility for national security affairs).
45. See Memorandum of Points and Authorities in Support of Motion to Dismiss Count One of the Indictment for Failure to State a Violation of the Charging Statute (Combat Immunity) (Motion #2), United States v. Lindh, Crim. No. 02-37-A E.D. Va. 2002) [hereinafter Lindh Memorandum].
46. See Waldemar A. SoIf & Edward R. Cummings, A Survey of Penal Sanctions Under Protocol I to the Geneva Conventions of August 12,1949,9 Case W. Res. J. Int'l L. 205, 212 (1977) ("[T]hose who are entitled to the juridical status of 'privileged combatant' are immune from criminal prosecution for those warlike acts which do not violate the laws and customs of war but which might otherwise be common crimes under municipal law.").
47. See id. at 212-13.
48. See Lindh Memorandum, supra note 28, at 14-15;
49. Memorandum Amicus Curiae Opposing Recognition of 'Combat Immunity' for Defendant Lindh in Regard to his Armed Support of Terrorism, United States v. Lindh, Crim. No. 02-37-A, at 6-11 (E.D. Va. 2002), available at http://fedsoc.server326.com/pdf/lindh.pdf (endorsing this interpretation of the elements of the test, but coming to a different conclusion regarding whether the test was satisfied in this instance).
50. POW status, according to GPW, is available only in connection with an international armed conflict as that phrase is defined in Common Article 2 of the Geneva Conventions. Geneva Convention Relative to the Treatment of Prisoners of War art. 2, Aug. 12,1949,6 U.S.T. 3316,3318.
51. Geneva Convention Relative to the Treatment of Prisoners of War art. 4, Aug. 12, 1949, 6 U.S.T. 3316,3320.
52. See Lindh Memorandum, supra note 28, at 15 & n.12;
53. cf. Gabor Rona, Legal Issues in the 'War on Terrorism'-Reflecting on the Conversation Between Silja N.U. Voneky and John Bellinger, 9 German L.J. 711, 715-18 (2008), available at http://www.germanlawjournal.com/print.php?id=963 (supporting POW status for Taliban detainees).
54. Memorandum from George W. Bush, President of the U.S., to Richard B. Cheney, Vice President of the U.S., et al., Humane Treatment of al Qaeda and Taliban Detainees (Feb. 7, 2002),
55. reprinted in The Torture Papers: The Road to Abu Ghraib 134-35 (Karen J. Greenberg & Joshua L. Dratel eds., 2005).
56. See Memorandum from Jay S. Bybee, Assistant Attorney Gen., to Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, Gen. Counsel, Dep't of Def., Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002) [hereinafter Bybee Jan. 22 Memo],
57. reprinted in The Torture Papers, supra note 35, at 81-117;
58. Memorandum from Jay S. Bybee, Assistant Attorney Gen., to Counsel to the President, Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 (Feb. 7, 2002), available at http://www.usdoj.gov/olc/2002/ pubartc4potusdetermination.pdf [hereinafter Bybee Feb. 7 Memo];
59. Memorandum from John Yoo, Deputy Assistant Attorney Gen., and Robert J. Delahunty, Special Counsel to William J. Haynes II, Gen. Counsel, Dep't of Def., Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 9, 2002) (draft),
60. reprinted in The Torture Papers, supra note 35, at 38-79.
61. See, e.g., Bybee Jan. 22 Memo, supra note 36, at 90.
62. For a review of the debate concerning extension of the four conditions to Articles 4(A)(1) and (3) despite the fact that they appear in the text only of Article 4(A)(2), see Robert M. Chesney, Leaving Guantánamo: The Law of International Detainee Transfers, 40 U. Rich. L. Rev. 657,718-28 (2006).
63. On the question of collective versus individual compliance, see id. at 728-29;
64. Rona, supra note 34, at 717 (stating that "reasonable scholars differ over whether [noncompliance] . . . disqualif[ies] just the individuals who commit [war crimes] or the entire entity of which they are a part").
65. See Bybee Feb. 7 Memo, supra note 36, at 2-4; Memorandum from John Yoo and Robert J. Delahunty, supra note 36, at 62; Bybee Jan. 22 Memo, supra note 36, at 101.
66. See Government's Opposition to Defendant's Motion to Dismiss Count One of the Indictment for Failure to State a Violation of the Charging Statute (Combat Immunity) (#2) at 2-3,12, United States v. Lindh, Crim. No. 02-37-A (E.D. Va. 2002).
67. Id. at 2-3.
68. Id. at 12 (emphasis added).
69. Id. at 2;
70. see also id. at 6-7 (contending that the "status of an armed group" under international humanitarian law "is a question committed exclusively to the President as Commander in Chief because it "bears directly upon the President's core constitutional authority to conduct military operations in defense of the Nation");
71. id. at 11 ("Military questions such as those involving the status of an armed group under the laws of war are 'textually.. commit[ted]' by the Constitution to the political branches.")
72. (quoting Baker v. Carr, 369 U.S. 186,217 (1961)).
73. Id. at 9 (internal quotation marks and citations omitted).
74. Id. at 11
75. (quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304,320 (1936) (observing that the President "has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war")).
76. Id.
77. Id. at 19;
78. see also id. at 20 (arguing that courts lack capacity to resolve fact disputes regarding issues such as "the extent of systematic organization and hierarchical command within an armed faction in a distant land");
79. id. at 23 ("The President has available far superior sources of intelligence and information for evaluating the conduct of a foreign force that poses a military threat to the Nation..").
80. See id. at 12-14
81. (citing, inter alia, United States v. Stuart, 489 U.S. 353, 369 (1989)).
82. United States v. Lindh, 212 F. Supp. 2d 541,555 (E.D. Va. 2002).
83. Id.
84. See id. at 556.
85. Id.
86. Id.
87. See Plea Agreement, United States v. Lindh, Crim. No. 02-37A (E.D. Va. July 15, 2002), available at http://news.findlaw.com/hdocs/docs/lindh/ uslindh71502pleaag.pdf.
88. See Brief for the United States at 51-52, United States v. Reynolds, 345 U.S. 1 (1953) (No. 21).
89. Brief for the Respondents at 11, United States v. Reynolds, 345 U.S. 1 (1953) (No. 21).
90. United States v. Reynolds, 345 U.S. 1, 9-10 (1953). The Court stated that there was no need to address the "constitutional overtones" of these competing positions.
91. Id. at 6. It necessarily spoke to them, however, when it resolved the merits.
92. Id. at 10. Where the plaintiff makes a strong showing of need for the information in question, moreover, the court cautioned that the executive's judgment "should not be lightly accepted."
93. Id. at 11.
94. Id. at 11.
95. For the video, see PublicResourceOrg, Hepting v. AT&T Corp., http://www.youtube.com/watch?v=ppRKfXiXBLM at 11:40-13:08 (last visited May 17, 2009).
96. For an unofficial transcript, see Oral Argument at 5-6, Hepting v. AT&T Corp., 539 F.3d 1157 (9th Cir. 2008) (Nos. 06-17132 & 06-17137), http://www.eff.org/files/filenode/att/hepting-9th-circuit-hearing-transcript- 08152007.pdf.
97. See Hepting v. AT&T Corp., 539 F.3d 1157,1158 (9th Cir. 2008).
98. Al-Haramain Islamic Found, v. Bush, 507 F.3d 1190,1203 (9th Cir. 2007).
99. Id. See also El-Masri v. United States, 479 F.3d 296, 305, 312 (4th Cir. 2007) (asserting that "it is the court, not the Executive, that determines whether the state secrets privilege has been properly invoked," but also that "the Executive and the intelligence agencies under his control occupy a position superior to that of the courts in evaluating the consequences of a release of sensitive information," that the "executive branch's expertise in predicting the potential consequences of intelligence disclosures is particularly important given the sophisticated nature of modern intelligence analysis," and that "[i]n assessing the risk that such a disclosure might pose to national security, a court is obliged to accord the 'utmost deference' to the responsibilities of the executive branch").
100. See, e.g, Examining the State Secrets Privilege: Protecting National Secuirity While Preserving Accountability: Hearing on S. 2533 Before the S. Comm. on the Judiciary, 110th Cong. 2 (2008) (statement of Louis Fisher) (warning that deference-whether framed as "utmost deference" or just "deference" simpliciter-"undermines the principle of judicial independence, the essential safeguard of checks and balances, and the right of private litigants to have a fair hearing in court") (transcript available at http://judiciary.senate.gov/testimony.cfm?id=3091&wit-id=6955);
101. Reform of the State Secrets Privilege, Hearing Before the Subcomm. on the Constitution, Civil Right, and Civil Liberties of the H. Comm. on the Judiciary, 110th Cong. 56 (2008) (statement of William H. Webster) (arguing that "[j]udges are well-qualified to review evidence purportedly subject to the privilege and make appropriate decisions as to whether disclosure of such information is likely to harm our national security"), available at http://judiciary.house.gov/hearings/printers/110th/40454.pdf.
102. See State Secrets Protection Act, S. 2533, 110th Cong. (2008), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110-cong- bills&docid=f:s2533is.txt.pdf.
103. See FOIA, 5 U.S.C. §552b(c)(l) (2006);
104. Cent. Intelligence Agency v. Sims, 471 U.S. 159,176,179-80 (1985) (concluding that courts should defer to the judgment of the Director of Central Intelligence regarding whether to disclose the identity of intelligence sources in connection with a FOIA request, because courts "have little or no background in the delicate business of intelligence gathering," are less well positioned to make "complex political, historical, and psychological judgments" about the consequences of disclosure, and are not in the Director's position of being "familiar with 'the whole picture'").
105. See Dep't of the Navy v. Egan, 484 U.S. 518,529 (1988) (holding that "[p]redictive judgment" about the risks associated with granting a security clearance to an individual "must be made by those with the necessary expertise in protecting classified information," and that "it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence").
106. Cf. Munaf v. Geren, 128 S. Ct. 2207, 2212 (2008) (asserting that "[t]he judiciary is not suited to second-guess.. determinations" by the State Department regarding the likelihood Iraqi authorities would abuse a prisoner).
107. See Martin v. Mott, 25 U.S. (12 Wheat.) 19.
108. See id. at 28-29;
109. see also Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 Yale L.J. 149,171-72 (2004).
110. See Martin, 25 U.S. at 28-29.
111. See id. at 30-32.
112. The New York Court of Appeals reached the same conclusion in Vanderheyden v. Young, 11 Johns. R. 150,158-59 (N.Y. 1814).
113. See Martin, 25 U.S. at 30-31 ("The service is a military service, and the command of a military nature; and in such cases, every delay, and every obstacle to an efficient and immediate compliance, necessarily tend to jeopard[ize] the public interests.").
114. Id. at 31.
115. See id. at 32. Justice Story also emphasized a presumption of virtuous character in high public officials.
116. Id. at 32-33.
117. The Prize Cases provide another early example of deference to executive factual judgment where predictive and policy judgments intersect in a military setting. See 67 U.S. (2 Black) 635,670 (1862) (holding that "[w]hether the President.. has met with such armed hostile resistance .. as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted").
118. See Hirabayashi v. United States, 320 U.S. 81 (1943).
119. See id. at 89,93-95;
120. cf. Eric L. Muller, Hirabayashi: The Biggest Lie of the Greatest Generation 4-5 (Univ. of N.C. Legal Studies Research Paper 1233682), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1233682 (contending that the military did not in fact believe that there was a serious invasion threat, and that Jus-tice Department attorneys were aware of this but nonetheless represented the contrary to the Court).
121. Hirabayashi, 320 U.S. at 99.
122. Korematsu v. United States, 323 U.S. 214,218-19 (1944).
123. See, e.g., Muller, supra note 78, at 65.
124. Many scholars have argued against deference in this setting, noting that the government in these cases may have presented false information to the courts. See, e.g., id. But non-deferential review is not the only or even the most useful safeguard against such abuse. Intentional misrepresentations to the court are unethical and possibly even criminal acts, subject to an array of sanctions. Such sanctions may not be a perfect mechanism for the detection and deterrence of such misconduct, but they are more plausible checking mechanisms than non-deferential review, and they remain in place even in a deferential framework.
125. Cf. In re Guantanamo Bay Detainee Litig., 581 F. Supp. 2d 33, 37 (D.D.C. 2008) (rejecting executive branch argument that admitting Uighur detainees from Guantánamo Bay Cuba to the United States would pose a security risk), rev'd, Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) (holding that district court lacked authority to direct the executive branch to bring detainees into the United States or to order their release in the United States).
126. Commentators frequently group military preparedness cases under the rubric of "military deference." See, e.g., Kirstin S. Dodge, Countenancing Corruption: A Civil Republican Case Against Judicial Deference to the Military, 5 Yale J.L. & Feminism 1, 5-6 (1992);
127. John F. O'Connor, The Origins and Application of the Military Deference Doctrine, 35 Ga. L. Rev. 161, 280-83 (2000). Military deference, however, is both narrower and broader than national security fact deference. It is narrower in that national security fact deference extends beyond the military sphere, as illustrated by the discussion of the state secrets privilege. It is broader in that many "military deference" cases do not involve deference to factfinding but rather deference in the looser sense of construing constitutional restraints more permissively in cases involving service members or military installations.
128. See, e.g., Goldman v. Weinberger, 475 U.S. 503, 507 (1986) ("Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.");
129. Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981) ("The case arises in the context of Congress' authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference.");
130. Greer v. Spock, 424 U.S. 828, 837-38 (1976) (holding that crimes punishable by courts martial should not be held to the same vagueness standard as would apply to an ordinary criminal statute).
131. Ben Shalom v. Marsh, 881 F.2d 454, 461 (7th Cir. 1989);
132. see also Thomasson v. Perry, 80 F.3d 915, 925-26 (4th Cir. 1996) (citing comparative institutional competence and collateral consequence arguments in support of deference to military judgment regarding "Don't Ask, Don't Tell").
133. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008).
134. See Natural Res. Def. Council, Inc. v. Winter, 518 F.3d 658, 703 (9th Cir. 2008) (upholding preliminary injunction).
135. Winter, 129 S. Ct. at 378-81 (2008).
136. Transcript of Oral Argument at 35,
137. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (No. 07-1239), available at http://www.supremecourtus.gov/oral-arguments/argument-transcripts/ 07-1239.pdf.
138. The phrase derives from Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1, 9-13 (2004).
139. For a sampling of additional contributions to this line of scholarship, see Richard H. Fallon, Jr., Implementing the Constitution 37-44 (2001) [hereinafter Fallon, Implementing];
140. Kermit Roosevelt III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions 11-64 (2006) [hereinafter Roosevelt, Myth];
141. Brannon P. Denning, The New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller, 75 Tenn. L. Rev. 789;
142. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1275 (2006) [hereinafter Fallon, Judicially Manageable Standards];
143. Horwitz, supra note 3, at 114046;
144. Kermit Roosevelt III, Constitutional Calcification: How the Law Becomes What the Court Does, 91 Va. L. Rev. 1649,1658-66 (2005) [hereinafter Roosevelt, Calcification];
145. Catherine T. Struve, Constitutional Decision Rules for Juries, 37 Colum. Hum. Rts. L. Rev. 659 (2006). Other scholars have objected to the central claim in this literature that there exists a distinction between constitutional meaning and the rules that judges develop to permit implementation of that meaning in particular cases.
146. See, e.g., Roderick M. Hills, Jr., Mistaking the Window-Dressing for the Window, 91 Judicature 146 (2007) (reviewing Roosevelt, Myth, supra). Though arguable, the criticism suggests that the distinction collapses because instrumental factors are central to the determination of constitutional meaning, and thus that implementation via "decision rules" is no more than further elaboration of meaning. If that is the case, this objection does not undermine the utility of relying on the decision rules literature as a guide to identifying the key instrumental considerations that might inform national security fact deference claims.
147. An alternative possibility is that fact deference claims are better understood as turning, in every instance, on the meaning and interrelationship among various consti-tutional provisions such as the "judicial power" and "Commander-in-Chief clauses. I find this account less compelling than the decision rules model, but it is worth noting because it might give rise to an originalist objection to reliance on functional and prudential considerations. Cf. Michael D. Ramsey, The Constitution's Text in Foreign Affairs 3 (2007) (contending that original public meaning can shed considerable light on seemingly sparse text relating to foreign affairs);
148. Ingrid Wuerth, An Originalism for Foreign Affairs? 2-3 (Vand. Pub. Law Research Paper, Working Paper No. 08-13, 2008), available at http://ssrn.com/abstract=1134887 (urging foreign relations law scholars to take account of methodological debates in the constitutional theory literature). The important point for present purposes is that originalist methods likely would not produce an interpretation sufficient to resolve a fact deference claim, and that some degree of construction-potentially including resort to structural, functional, and prudential methods-thus would still be required.
149. Cf. Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 118-30 (2004) (discussing the propriety of such methods);
150. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 5 (1999) (same);
151. Lawrence B. Solum, District of Columbia v. Heller and Originalism 44 Nw. U. L. Rev. (forthcoming 2009), available at http://papers.ssrn.com/abstract= 1241655 (elaborating the interpretation-construction distinction). If that is correct, the construction and decision rules accounts end up directing attention to similar concerns. Cf. Pearlstein, supra note 8, at 18 (noting that functionalism at times is unavoidable in resolving separation of powers disputes in the national security realm);
152. Stephen I. Vladeck, Foreign Affairs Originalism in Youngstown's Shadow, 53 St. Louis U. L.J. 29,31 (2008) (same). Of course, the text would have something to say if fact deference were invoked in the context of a factual question committed to a jury-which may explain why one does not see such attempts in actual practice.
153. See U.S. Const, amends. V, VI, VII; cf. In re Winship, 397 U.S. 358, 364 (1970) (deriving a beyond-a-reasonable-doubt requirement from the Fifth Amendment Due Process Clause for the elements of a criminal charge).
154. Berman, supra note 90, at 5. Metadoctrinalism is not, of course, an entirely novel development. Several scholars credit articles in the 1970s by Henry Monaghan and Larry Sager with reviving interest in the distinction between constitutional meaning in the abstract and the judicially enforceable Constitution.
155. See id. at 4-5
156. (discussing Henry P. Monaghan, The Supreme Court, 1974 Term-Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 1-3 (1975);
157. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978));
158. see also Horwitz, supra note 3, at 1141 (same);
159. Roosevelt, Calcification, supra note 90, at 1656 (discussing Sager's article). James Bradley Thayer previously had drawn attention to a similar notion when he contended that courts should refrain from striking down a statute as unconstitutional in close cases.
160. See, e.g., id.
161. (citing James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129,139-44 (1893)). Roosevelt notes that Thayer did "not see himself as articulating anything new."
162. See id. at 1656 n.18
163. (citing, inter alia, Fletcher v. Peck, 10 U.S. (6 Cranch) 87,128 (1810)).
164. Fallon, Implementing, supra note 90, at 5-6 (emphasis omitted);
165. see also Richard H. Fallon, Jr., The Supreme Court, 1996 Term-Foreword: Implementing the Constitution, 111 Harv. L. Rev. 54 (1997).
166. See Fallon, Implementing, supra note 90, at 5-6;
167. see also Roosevelt, Calcification, supra note 90, at 1650-51 (referring to the "fallacy of perfect enforcement").
168. Fallon, Implementing, supra note 90, at 7.
169. Id. at 10; see also id. at 10-11 ("This is especially true when the Court is unusually doubtful about the validity of what otherwise would be its own substantive judgment; when any injustice resulting from deference would not (in its judgment) be very great; and when there is a strong likelihood that independent judicial resolution would prove intensely unacceptable to large numbers of people whose views are not themselves unreasonable.").
170. Berman, supra note 90, at 51-60. Berman's primary purpose was to demonstrate the utility of maintaining the distinction between constitutional operative propositions and constitutional decision rules, despite criticism that constitutional adjudication is pragmatic "all the way up" rather than just at the decision rule stage or its equivalent.
171. See id. at 60 (contending that "we can carve up constitutional doctrine into two sorts of rules. . . even while conceding the legitimacy of each, and without staking ourselves to any claims about the sorts of considerations upon which courts might rely in the derivation and formulation of either");
172. id. at 43-50 (summarizing the debate in terms of "whether it is meaningful to carve the universe of constitutional doctrine into conceptually distinct pieces" in light of the possibility that "constitutional adjudication is instrumental 'all the way up'")
173. (quoting Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 873 (1999)). Toward that end, Berman pointed out that deeper awareness of the distinction may enhance our understanding of the extent to which the Court's constitutional doctrine ought to bind other branches, and may also work against the undesirable tendency to assume that only judges have the capacity or responsibility for engaging in constitutional analysis.
174. See id. at 84-87;
175. cf. Paul A. Diller, When Congress Passes an Intentionally Unconstitutional Law: The Military Commissions Act of 2006, 61 SMU L. Rev. 281, 295-305 (2008) (criticizing legislators who supported legislation they believed to be unconstitutional).
176. See Berman, supra note 90, at 9.
177. Id. at 10 ("A court cannot implement [an] operative proposition without some sort of procedure. . . for determining whether to adjudge the operative proposition satisfied," yet the court "lacks unmediated access to the true fact of the matter.") (emphasis omitted);
178. id. at 10 n.35 (noting that "epistemic uncertainty" on the judge's part requires selection of a burden of proof). In limited instances, the Constitution itself articulates the decision rule, in which case the distinction between decision rule and operative proposition collapses. This is the case in connection with determinations of fact in criminal prosecutions, for example, where the Constitution mandates use of a beyond-a-reasonable-doubt standard.
179. See Roosevelt, Calcification, supra note 90, at 1653. Constitutional silence with respect to the decision rule does not spare the judge the need to have one, however, but simply requires the judge to select the rule without the aid of clear textual direction.
180. See id. at 1658.
181. See Berman, supra note 90, at 9-10;
182. see also Roosevelt, Calcification, supra note 90, at 1652-54,1657-58 (distinguishing between meaning and implementation rules).
183. See Struve, supra note 90 (pointing out that in some litigation contexts, compliance with constitutional operative propositions is determined by the jury rather than the judge, and noting that this may justify distinctive decision rules).
184. See Richard Markovits, Matters of Principle: Legitimate Legal Argument and Constitutional Interpretation 180-81, 215-16, 265 (1998). Markovits notes that these categories frequently are conflated by courts and commentators and points out that a test of meaning can be combined with a deferential standard of proof, or vice-versa.
185. See id. at 180-81,215-16. Solove makes a similar point when he contends that the impact of deference with respect to "factual and empirical evidence tends to override whatever level of scrutiny is applied, and is often dispositive."
186. Solove, supra note 2, at 955.
187. Cf. Fallon, Implementing, supra note 90, at 116 (observing that "standards specifying . . . the deference due to other institutions of government cannot be derived directly from the written Constitution").
188. See Berman, supra note 90, at 64-65.
189. See Superintendent v. Hill, 472 U.S. 445,454-56 (1985).
190. Id. at 455-56. Berman notes that this rule may subsequently have been narrowed to apply only in connection with '"insufficiency of the evidence'" challenges, as distinct from claims based on alleged bias.
191. See Berman, supra note 90, at 65 n.200 (citing Edwards v. Balisok, 520 U.S. 641,648 (1997)).
192. Berman, supra note 90, at 64 (citing Fallon, Implementing, supra note 90, at 6, 38).
193. See supra text accompanying notes 32-35.
194. Authorization for Use of Military Force, Pub. L. No. 107-40 (2001).
195. See supra text accompanying notes 21-26. The operative proposition at issue in Hamdi also can be viewed as a constitutional one if we take the view that it concerns the meaning of the Fifth Amendment's due process requirement. Cf. Roosevelt, Myth, supra note 90, at 79 (contending that in Hamdi the "meaning of the Constitution [i.e., the operative proposition] is that the Executive may detain enemy combatants and not innocents");
196. Roosevelt, Calcification, supra note 90, at 1714-15 (same). Determining who counts as a detainable enemy combatant in that setting, however, required consideration of the underlying law of war norms as well as the proper interpretation of the statute authorizing the President to use military force after 9/11. Perhaps the best description, then, is that the deference question in Hamdi arose at the intersection of a series of related operative propositions, including constitutional, statutory, and international law concerns.
197. One might argue that all of these scenarios-indeed that any fact deference scenario-present a constitutional question with respect to the separation of powers. This may be so. The useful insight of the decision rules account, however, is that questions of deference should be examined in relation to the underlying operative proposition that gives rise to the need to resolve the deference question in the first instance, and those operative propositions in many instances will concern sources of law besides the Constitution.
198. Indeed, some such considerations might be more defensible in the context of subconstitutional rules, given that it should be clearer in that context that Congress may override the Court's selection of a particular deference rule. Then again, one of the points of distinguishing operative propositions and decision rules in the constitutional theory literature is to draw attention to the possibility that Congress might have greater capacity to override the latter than the former even in the constitutional context. See Berman, supra note 90, at 25-27,116-27 (emphasizing that decision rules do not share the Marbury-shielded nature of operative propositions).
199. See, e.g., Markovits, supra note 102, at 216-18 (identifying "factors that a judge is obligated to consider when deciding how much deference to show to a government decision-maker who has made the choice being challenged in a particular case," including considerations of accuracy, comparative competence, impact on groups subjected to unconstitutional disadvantages as a historical matter, lack of deliberation, illicit motivations, and the status of the potential deferee);
200. Berman, supra note 90, at 93 (providing a non-exhaustive list of "six analytically distinct factors or families of factors that might appeal to a judge considering whether, and how, to form a constitutional decision rule," including "adjudicatory, deterrent, protective, fiscal, institu-tional, and substantive" considerations (emphasis omitted)); Roosevelt, Calcification, supra note 90, at 1658-66 (discussing "institutional competence," "costs of error," "frequency of unconstitutional action," "legislative pathologies," "enforcement costs," and "guidance for other governmental actors").
201. Core accuracy is an aspect of what Berman describes as the "adjudicatory consideration," which he notes is "[t]he most obvious factor that a decision-rule-maker should consider." Berman supra note 90, at 93.
202. Roosevelt captures core accuracy concerns under the "Institutional Competence" heading. See Roosevelt, Calcification, supra note 90, at 1659-60. Markovits includes this concern, at least implicitly, under a consideration that could be labeled comparative institutional competence.
203. See Mark-ovits, supra note 102, at 216.
204. See Roosevelt, Calcification, supra note 90, at 1651-52.
205. See id. at 1659-60. Note that comparative competence for accuracy is not a one- size-fits-all proposition; the comparison may vary depending on the nature of the question.
206. See Markovits, supra note 102, at 216 (observing that training, experience, and institutional structure render judges on the whole superior to other government actors at assessing values such as "fundamental fairness," in contrast to the example of Defense Department superiority at collecting and examining "technical facts about national defense");
207. David Cole, No Reason to Believe: Radical Skepticism, Emergency Power, and Constitutional Constraint, 75 U. Chi. L. Rev. 1329,1135-42 (2008)
208. (reviewing Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts (2007)) (emphasizing the distinction between balancing competing government and individual interests and determining particular facts that might feed into that analysis).
209. See Roosevelt, Calcification, supra note 90, at 1659-61;
210. cf. Christopher L. Eisgruber & Lawrence G. Sager, Civil Liberties in the Dragons' Domain: Negotiating the Blurred Boundary between Domestic Law and Foreign Affairs after 9/11, in September 11 in History: A Watershed Moment? 163, 174-75 (Mary L. Dudziak ed., 2003) (presenting a comparative institutional competence argument regarding the contrasting epistemic capacities of military and civilian courts, in connection with the proposi-tion that military life is a sphere apart from civilian life and hence that military courts are more likely "to get at the truth in disputes about the conduct of soldiers").
211. Roosevelt, Calcification, supra note 90, at 1660 (citing, inter alia, Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153,156 (1997));
212. cf. Fallon, Implementing, supra note 90, at 40-41 (noting that "in the face of uncertainty about whether it understands an institutional context, the Court may conclude that it would be imprudent not to defer to the judgments of others about what is appropriate under the circumstances," and offering the example of deference to military and prison authorities). For empirical evidence sug gesting that untrained judges perform poorly compared to trained judges when resolving complicated factual questions in the context of economics
213. see Michael R. Baye & Joshua D. Wright, Is Antitrust Too Complicated for Generalist Judges?: The Impact of Economic Complexity & Judicial Training on Appeals 23-24 (George Mason L. & Econ. Research Paper No. 09-07), available at http://ssrn.com/abstract=1319888
214. See Solove, supra note 2, at 959 (noting the comparative expertise argument for deference claims).
215. For an exceptionally rich discussion of the nature of expertise and the dilemmas that arise when non-experts attempt to determine whether to credit the views of ex-perts,
216. see Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 Yale L.J. 1535 (1998) (unpacking the theoretical foundations of deference to ex-pertise).
217. See Markovits, supra note 102, at 216 (arguing that "courts should defer less" where the decision in question "disadvantages a group, restricts a liberty, or disserves a value" where there is a historical pattern of such harms);
218. id. at 217 (calling attention to structural, sociological, and historical evidence of a group's capacity to protect it-self in the ordinary political process, and noting that the presence of an illicit motive undermines the case for deference);
219. Roosevelt, Calcification, supra note 90, at 1663- 64 (referring to this as the "Frequency of Unconstitutional Action" consideration).
220. See Cole, supra note 116, at 1347-52; Roosevelt, Calcification, supra note 90, at 1664.
221. See Markovits, supra note 102, at 216-17.
222. Berman, supra note 90, at 93 (emphasis added);
223. see also Roosevelt, Calcification, supra note 90, at 1662 (labeling this the "costs of error" consideration).
224. The judge must account for such things as "the harm to the individual, the importance of the governmental interest likely to be thwarted, [and] the ability of the gov-ernment to achieve its legitimate aims by other means." Roosevelt, Calcification, supra note 90, at 1662.
225. As we move away from core accuracy concerns, legitimacy objections to the consideration of particular factors arguably grow stronger. Cf. Berman, supra note 90, at 92 ("Just as only some sorts of moves are supposed permissible when traveling from the Constitution to constitutional meaning,.. maybe only some moves (albeit different ones) can fairly be relied on to support a given constitutional decision rule."). The legitimacy issue has been central to the metadoctrinal discourse at least since Monaghan, who appreciated that doctrinal rules presented both separation of powers and federalism questions insofar as they were not derived directly from constitutional meaning yet purported to bind other branches of the federal government or the states.
226. See id. at 88-89 (citing Monaghan, supra note 92, at 9, 22-23, 34-38). Indeed, Monaghan's solution-justifying judicially crafted constitutional doctrine as an exercise in specialized federal common lawmaking-prompted criticism along these very lines.
227. See id. at 89-90 (citing Thomas S. Schrock & Robert C. Welsh, Reconsidering the Constitutional Common Law, 91 Harv. L. Rev. 1117,1126-31 (1978));
228. cf. Sara Sun Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 Colum. L. Rev. 1433, 1520-22 (1984) (concluding that specialized federal common law justified judicial development of doctrinal rules governing litigation procedure but not rules intended to govern extrinsic matters such as police investigative procedures). Some observers, however, presumably would not object to consideration of instrumental factors other than the pursuit of core accuracy.
229. See Berman, supra note 90, at 14-15
230. (commenting on the argument that the task of ascertaining constitutional meaning is itself "shot through with judicial attention to practical, policy-oriented, and interest-balancing sorts of considerations," in the context of a discussion relating to David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190 (1988)).
231. See Berman, supra note 90, at 93-94 (discussing protective and deterrent considerations);
232. Solove, supra note 2, at 1009 (noting risk that "hindsight" criticism may "re-sult in government paralysis in times of great urgency");
233. cf. Roosevelt, Calcification, supra note 90, at 1666-67 (contending that "[uncertainty on the part of governmental actors may lead either to excessive timidity or to wasted resources when a good faith attempt to comply with constitutional demands is later held invalid").
234. See Berman, supra note 90, at 10 n.35 (observing that accuracy related considerations are "unavoidable," but "it does not follow that decision rules must be designed for the sole purpose of minimizing total [or weighted] adjudicatory errors that epistemic uncertainty produces").
235. See id. at 94-95 (discussing the "fiscal consideration" (emphasis omitted)).
236. Roosevelt accounts for similar concerns under the label "enforcement costs." See Roosevelt, Calcification, supra note 90, at 1665 ("Some constitutional operative propositions may require courts to decide questions that they simply cannot, or that they cannot without burdensome or intrusive evidence-gathering.");
237. see also Solove, supra note 2, at 1007-08 (discussing the difficulty justification).
238. See Roosevelt, Calcification, supra note 90, at 1665 (discussing "enforcement costs" and related issues of "burdensome or intrusive evidence-gathering").
239. For a classic example of this argument in practice, see Johnson v. Eisentrager, 339 U.S. 763, 779 (1950) (emphasizing the intolerability during hostilities of causing military com-manders to lose "prestige" or servicemembers to leave their stations to participate in litigation).
240. Berman labels this the institutional consideration. See Berman, supra note 90, at 95. Berman notes that Alexander Bickel famously provided an institutional justifica-tion to support justiciability doctrines, though he also observes that Bickel's account generated substantial criticism.
241. See id. (citing Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 184 (2d ed. 1986);
242. Gerald Gunther, The Subtle Vices of the "Passive Virtues"-A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1 (1964);
243. Herbert Wechsler, Book Review, 75 Yale L.J. 672 (1966)
244. (reviewing Alexander M. Bickel, The Least Danger-ous Branch: The Supreme Court at the Bar of Politics (1962)
245. , and Alexander M. Bickel, Politics and the Warren Court (1965))).
246. Berman, supra note 90, at 95.
247. See Horwitz, supra note 3, at 1080-83.
248. Id. at 1082-83.
249. Berman identifies a further factor that may influence decision rule formation, labeling it the "substantive consideration." See Berman, supra note 90, at 95 (emphasis omitted). This category refers to the possibility that "judges could conclude, based on their own substantive value or policy judgments, that a particular constitutional provi-sion, properly interpreted, carries its underlying norm or principle too far or not far enough. And they might, as a consequence, create a decision rule designed simply to better effectuate that norm." Id.
250. See, e.g., Horwitz, supra note 3, at 1079-85
251. (citing, inter alia, Gary Lawson & Christopher D. Moore, The Executive Power of Interpretation, 81 Iowa L. Rev. 1267, 1278 (1996)).
252. Cf. Horwitz, supra note 3 at 1082-83 (categorizing democratic accountability concerns under the guise of comparative legitimacy).
253. Cf. Posting of Roderick M. Hills, Jr. to Prawfsblawg, Horowitz on Deference, Hills on Pragmatism, http://prawfsblawg.blogs.com/prawfsblawg/2008/ 03/horowitz-on-def.html (Mar. 10,2008,9:25 EST)
254. (arguing, in response to Horwitz, supra note 3, that the distinction between comparative accuracy and comparative legitimacy collapses insofar as the criteria that define epistemic accuracy are the product of a normative choice that is in turn contingent upon the allocation of legal authority).
255. See supra Part I.
256. See, e.g., Hills, supra note 90, at 147; Hills, supra note 139.
257. Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 86 (2002). For a summary of the debate relating to the merits of the attitudinal model,
258. see Howard Gillman, What's Law Got to Do With It?: Judicial Behavioralists Test the "Legal Model" of Judicial Decision Making, 26 Law & Soc. Inquiry 465, 468-76 (2001)
259. (reviewing Harold J. Spaeth & Jeffrey A. Segal, Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court (1999)).
260. See, e.g., Jeffrey A. Segal & Harold J. Spaeth, The Influence of Stare Decisis on the Votes of United States Supreme Court Justices, 40 Am. J. Pol. Sci. 971, 983 (1996);
261. Donald R. Songer & Stefanie A. Lindquist, Not the Whole Story: The Impact of Justices' Values on Supreme Court Decision Making, 40 Am. J. Pol. Sci. 1049,1061 (1996).
262. Cf. Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 4-5 (2006) (suggesting that discretion to indulge pol-icy or value preferences relates inversely to the determinacy of the relevant legal materials).
263. See, e.g., Brian Tamanaha, The Realism of Judges Past and Present, 56 Clev. St. L. Rev. (forthcoming 2009), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=1024747# (discussing beliefs among judges during the "legal realism" era regarding the constraining effect of legal constructs, by way of exploring current debates regarding the attitudinal model).
264. See Office of Dir. of Nat'l Intelligence, Vision 2015: A Globally Networked and Integrated Intelligence Enterprise 4 (2008), http://www.dni.gov/ Vision-2015.pdf (observing that "the list of national security.. concerns" must expand "to include infectious diseases, science and technology surprises, financial contagions, economic competition, environmental issues, energy interdependence and security, cyber attacks, threats to global commerce, and transnational crime");
265. see also Joseph J. Romm, Defining National Security: The Nonmilitary Aspects (1993);
266. Michael Chertoff, The Responsibility to Contain, 88 Foreign Aff. 130,138 (Jan/Feb. 2009) (emphasizing emergence of stateless and transnational threats and the interdependence of states with respect to security)
267. ; John C. Gannon, Chairman, Nat'l Intelligence Council, Defining US National Security for the Next Generation, Speech at the Conference on the Role of Foreign Assistance in Conflict Prevention (Jan. 8, 2001), available at http://www.dni.gov/nic/speeches-definingsecurity.html (defining national security with reference to a variety of unconventional security threats).
268. Thus much, if not most, of the discussion below would apply by extension to fact deference claims having little or no relation to national security.
269. See also Fallon, Judicially Manageable Standards, supra note 90, at 1301.
270. Cf. Solove, supra note 2, at 1010-11 (criticizing monolithic depictions of institutions in connection with deference analyses, something he describes as characteristic of the legal process school).
271. For a related critique, see Pearlstein, supra note 8, at 14,63 (criticizing willingness of commentators to assume the existence of the executive's claimed functional advan-tages in terms of efficiency and accuracy).
272. Scholars including Christina Wells and Deborah Pearlstein have observed in commenting on comparative accuracy arguments in related contexts that this requires attention to be paid to the details of organizational structure and institutional incentives.
273. See Christina E. Wells, Questioning Deference, 69 Mo. L. Rev. 903 (2004);
274. Pearlstein, supra note 8.
275. See, e.g., Julian Ku & John Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch, 23 Const. Comment. 179, 199-200 (2006) (observing that "courts have access to limited information in foreign affairs cases," in part because they "do not actively gather information" and in part because the information provided by parties "must survive rules that impose tests for relevance, credibility, and reliability that are designed to ensure fairness toward the contending parties").
276. The "Intelligence Community" is an interagency organizational concept that refers in practical terms to a host of agencies housed within a number of executive branch departments that are subject to a limited degree of centralized management and control in pursuit of the National Intelligence Program. For the list of compo-nents, see Members of the Intelligence Community: Who They Are, http://www.intelligence.gov/1-members.shtml (last visited May 18,2009).
277. Of course, there is no guarantee that the information available to different departments and individuals in the executive branch will be pooled effectively (or at all).
278. See Pearlstein, supra note 8, at 47-49. (discussing the stovepiping problem). Questions remain regarding the efficacy of the information "fusion" center created after 9/11 in connection with topics such as counterterrorism and counterproliferation.
279. Cf. Nathan Alexander Sales, Share and Share Alike: Intelligence Agencies and Informa-tion Sharing 78 Geo. Wash. L. Rev. (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1392917# (discussing problems associ-ated with interagency information sharing through the lens of public choice theory).
280. See Ku & Yoo, supra note 152, at 199-205.
281. See, e.g., Gregory S. McNeal, Organizational Theory and Counterterrorism Prosecutions: A Preliminary Inquiry 21 Regent U. L. Rev. 307 (2009) (discussing such tensions in connection with Justice Department's National Security Division); Ari Shapiro, As Domestic Spying Rises, Some Prosecutions Drop, NPR Morning Edition, (July 11, 2008), available at http://www.npr.org/templates/ story/story.php?storyld=91968094 (describing FBI's transition to a focus on intelligencegathering).
282. Cf. Jonathan M. Fredman, Intelligence Agencies, Law Enforcement, and the Prosecution Team, 16 Yale L. & Pol'y Rev. 331, 338 (1998) (discussing "discovery rights and the commensurate obligations that they place on prosecutors in cases that may involve Intelligence Community information").
283. For an insightful discussion of the progressive era roots of deference to expertise, and subsequent influences, see Solove, supra note 2, at 995-1003 (arguing that devel-opment of a deference principle facilitated application of constitutional restraints in the context of the emerging administrative state without thereby bogging down the courts in supervisory obligations).
284. Such underspecification is a recurring problem in comparative institutional competence arguments. Cf. Adrian Vermeule, Many-Minds Arguments in Legal Theory, 1 J. Legal Analysis 1, 24-26, 35-38 (2009) (discussing the problem of underspecification in connection with arguments relating to majority rule, and noting that institutional comparisons frequently fail to account for the actual mechanisms of how decisions are made within institutions).
285. See supra note 91 (discussing constitutional restraints on deference in connection with questions committed to a jury).
286. See, e.g., Ku & Yoo, supra note 152, at 199-205.
287. For a sophisticated analysis of the theoretical obstacles non-experts face in assessing expert opinion in the trial setting, see Brewer, supra note 120;
288. cf. Meredith Fuchs & G. Gregg Webb, Greasing the Wheels of Justice: Independent Experts in National Security Cases, 28 Nat'l Security L. Rep. 1 (Nov. 2006) (discussing the appointment of special masters to remedy a judge's lack of expertise in national security affairs).
289. See, e.g., Ku & Yoo, supra note 152, at 200-05.
290. Julian Ku and John Yoo, for example, have argued that courts are especially bad at acquiring information relating to "broader political, economic, and social events and trends."
291. Julian Ku & John Yoo, Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute, 2004 Sup. Ct. Rev. 153,195;
292. see also Donald L. Horowitz, The Courts and Social Policy 274-84, 298 (1977) (describing ways in which institutional characteristics limit the reliability of judicial assessments of mutable "social facts," and commenting, in connection with the subject of judicial injunctions addressing complex social problems, that it may be "the inability of courts to see how their policies work out, or the difficulty of dealing with unusually fluid or broad problems in an episodic and narrow framework, that stamps the judicial process as more limited for some policy problems than other institutions are");
293. cf. Solove, supra note 2, at 962 (observing that "[cjourts readily defer to legislatures when a statute involves forecasts and predictions").
294. Jack Goldsmith makes a similar point when he observes that judges are ill-suited to determine the content of U.S. foreign relations interests or the extent to which par-ticular actions by states or other entities might run contrary to those interests. Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. Colo. L. Rev. 1395,1416-17 (1999). Goldsmith emphasizes that such inquiries "lack precise content" and that judges "lack the tools to make accurate and intelligent judgments in this context."
295. Id. at 1417;
296. cf. Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev. 649, 661-62 (2000) (observing that "courts often defer to the executive branch's assessment of United States foreign relations interests"). Much the same can be said about judicial review of any decisions that might best be described as turning on policy judgment.
297. Cf. Roosevelt, Calcification, supra note 90, at 1715 (observing that Hamdi's status was "a factual question courts seem quite capable of answering");
298. Roosevelt, Myth, supra note 90, at 231 (concluding that "[c]ourts are generally good at.. deciding narrow factual questions").
299. See supra Part I.
300. See Markovits, supra note 102, at 217 (calling for less deference where a decisionmaker "did not actually investigate despite [its] capacity to do so" and noting that "circumstance and inclination as well as inherent skills affect the quality of decisionmaking").
301. See Fed. R. Evid. 702 ("If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.").
302. In the context of the state secrets privilege, courts require formal consideration of the issue by the executive branch official heading the agency with responsibility for the information in question. See United States v. Reynolds, 345 U.S. 1, 7-8 (1953).
303. The prospect of multiple subject matter experts contributing to a factfinding judgment raises the question of whether any executive branch factfinding advantage should be deemed to be enhanced by virtue of the Condorcet Jury Theorem or other such "many-minds" arguments.
304. See Vermeule, supra note 159. The better view is no. As Adrian Vermeule persuasively argues, commentators frequently err in assuming the presence of a "many-versus-one" scenario when conducting institutional competence comparisons.
305. See id. at 33-38. The error lies in failing to recognize "epistemic bottlenecks."
306. Id. at 34-35 ("[T]he hierarchical structure of the executive usually implies that at some point a decision supported by many experts or mid-level officials will be funneled upward to a chokepoint, coming to rest on the desk of a single mind----The fact that one or few minds must unavoidably make the decision, with limited epistemic competence, whether and when to accept the counsel of many minds is precisely what constitutes the epistemic bottleneck.").
307. See, e.g., Cole, supra note 116, at 1342-58;
308. Pearlstein, supra note 8, at 29-55;
309. Geoffrey R. Stone, Civil Liberties v. National Security in the Law's Open Areas, 86 B.U. L. Rev. 1315,1328 (2006);
310. Wells, supra note 151, at 921-35.
311. But see Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts 64-75, 91-115 (2007);
312. Ku & Yoo, supra note 152, at 199-205;
313. Robert J. Pushaw, Jr., Defending Deference: A Response to Professors Epstein and Wells, 69 Mo. L. Rev. 959, 968-70 (2004);
314. but cf. Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpretation 77 (2006) (observing, in the context of interpretation, that the "general rubric of interpreters' capacities can be broken down into motivational and cognitive components").
315. See, e.g., McNeal, supra note 156, at 22-23 (discussing incentives encouraging risk of false positives and discouraging risk of false negatives).
316. Judges, in contrast, enjoy a degree of institutionalized protection against this type of concern. Most notably, their jobs cannot be taken from them except upon impeachment, and their salaries may not be diminished. That protection is by no means complete-it is no salve to a judge's conscience in the event of a catastrophic false negative, for example-but it is a notable institutional distinction nonetheless. Judi-cial decisionmaking also is distinct in that it is relatively transparent to the public (most rulings are public and accompanied by a reasoned explanation), and also in that it is subject to further review from other judges. These features produce direct and indirect forms of accountability, which in turn may constitute an additional institutional safeguard against the temptation to depart from the judge's best judgment in light of concern for the personal consequences of a decision.
317. Cf. Posner & Vermeule, supra note 172, at 85-86 (conceding that such weighted determinations inevitably will occur on an individual basis, but denying that they nec essarily will occur on a systemic basis).
318. See, e.g., Wells, supra note 151, at 907-08 (drawing on the "psychology of risk assessment-i.e., the study of how people determine the likelihood of uncertain events" to support the claim that, "contrary to the claim of proponents of judicial deference, executive officials are not inherently adept at assessing or reacting to national security threats")
319. (citing Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, in Judgment Under Uncertainty: Heuristics and Biases 3, 3 (Daniel Kahneman et al. eds., 1982)).
320. Id. at 922 (quoting Tversky & Kahneman, supra note 176, at 11).
321. Id. at 922-23, 925. Wells notes that intense emotions not only may contribute to overestimates of whether an event will occur, but may lead a person to disregard the prospects for occurrence altogether in favor of "focusing on the possible harm from the outcome."
322. Id. at 925;
323. cf. Ron Suskind, The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11, at 65 (2006) (describing the eponymous principle, allegedly embraced by Vice President Cheney, to the effect that certain threats were of a sufficient magnitude that "[i]f there was even a one percent chance of such an act occurring, we must act as if it's a certainty").
324. Wells, supra note 151, at 923 ("When people make tentative decisions, they tend to seek out confirmatory evidence to the exclusion of disconfirmatory evidence when finalizing that decision.").
325. See id. at 923-24 (describing a tendency to overestimate the accuracy of one's own judgment, a tendency that grows more pronounced as the subject matter becomes less determinate and also in proportion to the expertise of the decisionmaker).
326. Id. at 924.
327. Id. at 926-29. For an interesting analogue, consider Marc Sageman's account of the cognitive pathologies that may arise in the context of small group radicalization relating to the global jihad movement.
328. See Marc Sageman, Leaderless Jihad: Terror Networks in the Twenty-First Century 13-28 (2008).
329. But see Cass R. Sunstein, Misery and Company, New Republic, Oct. 22, 2008, at 39, 42-43 (
330. reviewing Marc Sageman, Leaderless Jihad: Terror Networks in the Twenty-First Century (2008)) (critiquing Sageman's argument).
331. Wells, supra note 151, at 926.
332. Id.
333. Id. at 928 (quoting Irving L. Janis, Groupthink: Psychological Studies of Policy Decisions and Fiascoes 9 (2d ed. 1982)).
334. Id. (citing Janis, supra note 185, at 176-77, 242-59);
335. cf. Heidi Kitrosser, Classified Information Leaks and Free Speech, 2008 U. Ill. L. Rev. 881, 910 (contending that the "lack of an institutionally open, dialogic structure for executive branch decision making lends itself to a culture of 'groupthink' that secrecy fosters and exacerbates").
336. All of the mechanisms identified by Wells could impact predictive judgments, but only two of them (the Confirmation Trap and Overconfidence Bias) clearly would apply to retrospective determinations as well.
337. See Charles L. Barzun, Rules of Weight, 83 Notre Dame L. Rev. 1957, 1993 (2008) ("Recently, scholars have criticized not only the normative and methodological premises on which the heuristics and biases research program is based, but also the assumption that its findings apply uniformly across social and institutional contexts and thus unproblematically justify proposals for legal reform.")
338. (citing Gerd Gigerenzer & Peter M. Todd, Fast and Frugal Heuristics: The Adaptive Toolbox, in Simple Heuristics that Make Us Smart 3, 5 (Gerd Gigerenzer et al. eds., 1999);
339. Jonathan J. Koehler, The Base Rate Fallacy Reconsidered: Descriptive, Normative and Methodological Challenges, 19 Behav. & Brain Sci. 1, 1 (1996));
340. Gregory Mitchell, Mapping Evidence Law, 2003 Mich. St. L. Rev. 1065,1082 (2003).
341. A review of materials made available to the public by the Central Intelligence Agency and the Defense Intelligence Agency reveals several studies informing ana-lysts of these risks and advising how to minimize them, including Richards J. Heuer, Jr., Ctr. For the Study of Intelligence, Cent. Intelligence Agency, Psychology of Intelligence Analysis (1999), https://www.cia.gov/library/ center-for-the-study-of-intelligence/csi-publications/books-and-monographs/ psychology-of-intelligence-analysis/PsychofIntelNew.pdf
342. Jeffrey R. Cooper, Ctr. For the Study of Intelligence, Cent. Intelligence Agency, Curing Analytical Pathologies: Pathways to Improved In-telligence Analysis (2005), http://www.fas.org/irp/cia/product/curing.pdf In a conver-sation with a knowledgeable official who asked not to be named, I was told that the Heuer text in particular is employed in training courses within the Intelligence Com-munity.
343. See Wells, supra note 151, at 942;
344. cf. Posner & Vermeule, supra note 172, at 75 (making a related argument about the mutual influence of "panic" on executive officials and judges). Note that group-based decision making can occur in both executive branch and judicial settings. Courts of appeals involve multiple members, for example, and there is reason to believe that their judgments can be influenced by group dynamics.
345. See Sunstein, supra note 182, at 42 (discussing literature demonstrating polarization effects when judicial panels have ideological uniformity).
346. Cf. Posner & Vermeule, supra note 172, at 74-86 (conceding the potential for misfeasance or malfeasance on an ad hoc basis, but denying that the case has been made for systemic predisposition to error or abuse).
347. Wells, supra note 151, at 936; Pearlstein, supra note 8,55-65.
348. Wells, supra note 151, at 938
349. (quoting Jennifer S. Lerner & Philip E. Tetlock, Accounting for the Effects of Accountability, 125 Psychol. Bull. 255, 263 (1999)).
350. See id. at 940, 946 (emphasis added).
351. Id. at 942
352. (quoting Mark Seidenfeld, Cognitive Loafing, Social Conformity, and Judicial Review of Agency Rulemaking, 87 Cornell L. Rev. 486, 509 (2002)) (internal quotation marks omitted).
353. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (describing a form of review focused on whether the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made") (internal quotation marks omitted).
354. See Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. 753, 757-75 (2006).
355. See id. at 793-800.
356. See Wells, supra note 151, at 945 (citing Seidenfeld, supra note 195, at 508-25).
357. See Masur, supra note 2, at 501-19.
358. This approach has an analogy in the context of judicial review of administrative agency factfinding. For the most part, judicial review of facts found by an administrative agency is deferential. Compare Administrative Procedure Act, 5 U.S.C. §706(2)(A) (2006), with § 706(2)(E) (specifying, respectively, that a court may set aside agency actions that are arbitrary and capricious or actions that are not supported by "substantial evidence"). But APA, 5 U.S.C. § 706(2)(F) does open the door to nondeferential, de novo review where the agency's factfinding procedure was not itself reliable.
359. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).
360. See United States v. Reynolds, 345 U.S. 1, 7-8 (1953).
361. Consider, in that regard, the fact that enemy combatant status determinations are made not by panels of experts having specialized knowledge of the jihad movement or other relevant expertise, but by panels of ordinary military officers. This may constitute a scenario in which the executive decisionmaker does not actually make use of information or expertise advantages that exist elsewhere in the executive branch.
362. Cf. Solove, supra note 2, at 946 n.19, 966-67 (observing that deference is "most problematic" in cases involving fundamental constitutional rights).
363. See Crowell v. Benson, 285 U.S. 22, 56-58 (1932).
364. Id. at 60-61
365. (citing Ng Fung Ho v. White, 259 U.S. 276, 285 (1922) (holding that deportee claiming citizenship in habeas proceeding has right to independent judicial review of disputed facts)).
366. See, e.g., Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 260 (1985);
367. Reuel E. Schiller, The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 Mich. L. Rev. 399, 438 (2007) (as serting that by the 1940s "federal courts treated Crowell as if it had never been decided").
368. cf. Judah A. Schechter, Note, De Novo Judicial Review of Administrative Agency Factual Determinations Implicating Constitutional Rights, 88 Colum. L. Rev. 1483, 1497-98 (1988) (
369. reexamining traditional justifications for deferential review in the context of the CIA). This may be attributable to the apparent vitality of the constitutional fact doctrine in the context of appellate review of trial court factfinding in the First Amendment context.
370. See, e.g., Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 508 & n.27 (1984) (invoking constitutional fact doctrine to justify de novo review of factual disputes related to applicability of First Amendment protections). It may also reflect, however, continuing interest in the view that non-deferential factfinding remains an essential fea-ture of the federal judicial power at least when onstitutional rights are predicated upon such findings.
371. See supra text accompanying notes 129-31.
372. See supra text accompanying note 75-80. Writing about the role of comparative institutional competence arguments in connection with the allocation of government power during emergencies-a topic not unrelated to the issue of fact deference in national security cases-Philip Bobbitt offered the following observation: Even if we agree.. that an attentiveness to the institutional capacities of the three branches would yield us a neutral principle of decision from which to derive rules for future disputes, how do we know that the Constitution is commit-ted to making sure that the most efficient agency act in national emergencies? This seems plausible enough, but the design of the Constitution.. as well as its imposition of various cumbersome requirements on governmental action, suggests that a good many values are to be preferred to the calculus of administrative efficiency. Philip Bobbitt, Constitutional Fate: Theory of the Constitution 55 (1982). Bobbitt aimed merely to show that one cannot easily escape inquiry into Constitutional pur-pose even when employing a non-purposive interpretive theory (because of the need to justify resort to that mode of argument), not to delegitimize consequentialism in general or efficiency arguments in particular.
373. The Federalist No. 70, at 392 (Alexander Hamilton) (Clinton Rossiter ed., 1961). The Hamiltonian Virtues play a key role in the Curtiss-Wright decision insofar as it awards inherent foreign affairs powers to the executive branch.
374. Deborah Pearlstein, The Constitution and Executive Competence in the PostCold War World, 38 Colum. Hum. Rts. L. Rev. 547, 555 (2007).
375. See Goldsmith, supra note 165, at 1397 (noting that "[conventional wisdom offers a functional justification for political branch hegemony in foreign relations");
376. Robert H. Knowles, American Hegemony and the Foreign Affairs Constitution 36 (N.Y. Univ. Pub. Law and Legal Theory Working Papers, Paper 111, 2009), available at http://lsr.nellco.org/cgi/viewcontent.cgi?article=1111&context= nyu/plltwp (describing these features, along with comparative expertise, as "the pillars of special defer-ence" to the executive in foreign affairs);
377. Wells, supra note 151, at 906 (noting frequent reliance on the Hamiltonian virtues in support of deference claims);
378. cf. Harold Hongju Koh, The National Security Constitution: Sharing Power after the IranContra Affair 118-19 (1990) (observing that the structural features of the presidency renders that office "institutionally best suited to initiate government action," and that the president's "decision-making processes can take on degrees of speed, secrecy, flexibility, and efficiency that no other governmental institution can match");
379. Posner & Vermeule, supra note 172, at 16 (concluding that "both Congress and the judiciary defer to the executive during emergencies because of the executive's institutional advantages in speed, secrecy, and decisiveness").
380. See generally Posner & Vermeule, supra note 172, at 5,18 (emphasizing the contrast along these dimensions);
381. Ku & Yoo, supra note 164, at 188, 193-94 (same);
382. Pushaw, supra note 172, at 968 (contrasting executive efficiency with a judiciary that "by design acts far more slowly than either political branch").
383. See, e.g., Ku & Yoo, supra note 164, at 182-83 (adding that litigation requires not just a willing and qualified litigant, but also one with sufficient resources to contest the case appropriately);
384. Pushaw, supra note 172, at 968;
385. cf. Posner & Vermeule, supra note 172, at 5 (describing the executive as flexible, the judiciary as rigid).
386. We see the executive employing this capacity, for example, in conducting annual reviews regarding the status of Guantánamo detainees who already have been classified, in the government's eyes at least, as enemy combatants. For an overview of the "administrative review board" process, see Memorandum from Gordon R. England, Deputy Sec'y of Def., to Sec'ys. of Military Dep'ts (July 14, 2006), available at http://www.defenselink.mil/news/Aug2006/ d20060809ARBProceduresMemo.pdf (describing ARB procedures).
387. See Ku & Yoo, supra note 164, at 183, 188-89, 192, 196-97.
388. See Johnson v. Eisentrager, 339 U.S. 763 (1950).
389. See id. at 778-79.
390. See supra text accompanying notes 7-11.
391. There may be circumstances in which collateral consequences of this sort might not be capable of amelioration through procedural devices aside from deference. Arguably Mott, involving President Madison's determination of the need to call forth the militia, provides such an example. Then again, a case such as Mott might more easily be explained in terms of a combination of the comparative accuracy argument discussed above and the political blowback and democratic accountability concerns discussed below.
392. Classified Information Procedures Act, Pub L. No. 96-456 (1980) (codified as amended at 18 U.S.C. app. §§ 1-16 (2006));
393. cf. Richard B. Zabel & James J. Benjamin, Jr., Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts 88-89 (2008), available at http://www.humanrightsfirst.info/pdf/080521-USLS-pursuit- justice.pdf (disputing claim that sensitive information was leaked during terrorism prosecutions in the 1990s).
394. The two justifications are not coextensive, however. The core accuracy argument, for example, requires a showing that epistemic advantages actually were employed, something that is not a relevant consideration for the democratic accountability inquiry.
395. See Fallon, Implementing, supra note 90, at 9 (observing that "most decisions that are subject to judicial review are not made by legislatures but by low-level offi-cials and administrative agencies that lack any strong democratic mandate," where "the actual prospect of democratic intervention is often small"); Solove, supra note 2, at 1015 (noting lack of transparency and accountability in administrative decisionmaking).
396. See Pearlstein, supra note 8, at 22 n.102.
397. Cf. Solove, supra note 2, at 1003-04 (observing, in the course of recounting affirmative arguments for deference, that "opinions involving deference depict judicial evaluation of factual judgments as an intrusion into the discretion of the officials and institutions under review").
398. The Constitution arguably does commit some legal and policy decisions to the President, of course. Formal legitimacy thus might be a useful model for understand-ing why judges in some settings should not supplant executive branch policy judgments.
399. I do not mean to suggest that the executive branch cannot make and act upon factual judgments. Obviously it does so constantly. The point instead is that the judiciary is not categorically excluded from reaching independent judgments when disputed facts relating to national security arise in a justiciable litigation setting.
400. Cf. Fallon, Judicially Manageable Standards, supra note 90, at 1291-92 (arguing that "judgments of nonjusticiability.. tend to conjoin reasoning that emphasizes judicial incompetence with suggestions that the disputed questions are assigned to other branches").