Structural constitutionalism as counterterrorism

California Law Review

Volumn 100, Issue 4, 2012, Pages 887-949

  Huq, Aziz Z ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 84864799524     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (277)

1. For a pithy introduction to the problem of web-based terrorism, see RICHARD A. CLARKE & ROBERT K. KNAK, CYBER WAR: THE NEXT THREAT TO NATIONAL SECURITY AND WHAT TO DO ABOUT IT 69-102 (2010). Tight government control of instant messaging services has been one proposed response to the August 2011 London riots.
2. See Eric Westervelt, British PM Cameron Proposes Tactics to Quell Riots, NPR (Aug. 11, 2011), http//www.npr.org/2011/08/11/139558719/british-pm-cameron- proposes-tactics-to-quell-violence.
3. Every major Supreme Court case about a post-9/11 counterterrorism policy has used Separation of Powers theory in this way. See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008) (extending constitutional habeas jurisdiction to Guantánamo Bay detentions);
4. Munaf v. Geren, 553 U.S. 674(2008) (upholding executive discretion to dispose of U.S. citizen detainees seized in Iraq by transfer to another sovereign);
5. Hamdan v. Rumsfeld, 548 U.S. 557(2006) (invalidating first-generation military commissions);
6. Hamdi v Rumsfeld, 542 U.S. 507 (2004) (upholding U.S. citizen's right of judicial review of grounds for military detention);
7. Rasul v. Bush, 542 U.S. 466 (2004) (extending statutory habeas jurisdiction to Guantánamo Bay detentions).
8. See Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59
9. STAN. L. Rev. 809, 811(2007) (explaining the difference between second-order and first-order analysis).
10. See Clinton v. City of New York, 524 U.S. 417, 438-47 (1998) (invalidating line-item veto);
11. Bowsher v. Synar, 478 U.S. 714, 732-34 (1986) (invalidating direct congressional control of spending);
12. INS v. Chadha, 462 U.S. 919, 951-59 (1983) (invalidating one-house legislative veto). This Article does not address these direct applications of the Separation of Powers.
13. Cf Aziz Z. Huq, When Was Judicial Restraint?, 100 CALIF. L. REV. 579 (2012) (developing a historical account of the groh of judicial willingness to invalidate statutes and regulations on constitutional grounds). There is a separate set of questions concerning the institutional design of counterterrorism policies that warrant separate consideration.
14. Cf Aziz Z. Huq, Forum Choice for Terrorism Suspects, 61 DUKE L.J. 1415 (2012) (examining one such design question: the allocation of adjudicative responsibilities among different possible venues in the terrorism context).
15. For a crisp explanation of institutional competence arguments in general, see Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 M1CH. L. REV. 885, 886, 925-48 (2003).
16. Compare Deborah N. Pearlstein, After Deference: Formalizing the Judicial Power for Foreign Relations Law, 159 U. PA. L. REV. 783, 851 (2011)
17. ("[C]ategorical deference is not formally required (as a matter of executive power) and may be formally prohibited (as a matter of judicial power)."), with Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE U. 1170, 1204 (2007) (arguing that the executive is best placed to resolve difficult foreign affairs questions requiring judgments of policy and principle, and that the judiciary should defer to the executive based on its foreign policy expertise).
18. See, e.g., STEPHEN DYCAS ET AL., COUNTERTERRORISM LAW 39-63 (2007) (discussing division of war powers between the political branches).
19. See, e.g., GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 381-92 (6th ed. 2009) (discussing terrorism detention cases in the course of addressing the Separation of Powers);
20. RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW: CASES AND NOTES 299-323 (8th ed. 2007) (same).
21. Daphne Barak-Erez, Terrorism Law Between the Executive and Legislative Models, 57 AM. J. COMP. L. 877, 877 (2009);
22. accord Laurie R. Blank, Principles of Counter-Terrorism Law, 25 EMORY INTL L. REV. 771, 772 (2011) (book review);
23. see also Patricia L. Bellia, Designing Surveillance Law, 43 ARIZ. ST. L.J. 293, 329 (2011) ("Institutional competence arguments about
24. on executive action"). TOWARD THE COMPLETION OF THE AMERICAN FOUNDING 16 (Morton J. Frisch ed, 2007) [hereinafter PACIFICUS-HELVIDIUS DEBATES].
25. See, e.g., ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS (2007).
26. Jide Nzelibe & John Yoo, Rational War and Constitutional Design, 115 YALE L.J. 2512, 2523 (2006).
27. John Yoo, War, Responsibility, and the Age of Terrorism, 57 STAN. L. REV. 793, 820 (2004);
28. see also JOHN YOO, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON TERROR 120 (2008) ("If ever there were an emergency that Congress could not prepare for, it was the war brought upon us on 9/11.");
29. JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005). To the extent that Professor Yoo's arguments rely on historical claims, other scholars have persuasively and comprehensively shown them to be belied by the historical record and indeed at odds with elementary standards of legal historical work.
30. See Julian Davis Mortenson, Executive Power and the Discipline of History, 78 U. CHI. L. REV. 377, 381-82 (2011) ("Yoo's constitutional history. misstates crucial facts, misunderstands important episodes, and misrepresents central primary sources. [and] omits and obscures evidence that contradicts its claims.").
31. See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 322-24 (1936) (authorizing broader delegations in foreign affairs than in domestic matters). The Curtiss-Wright case was the nub of early and devastating criticism.
32. See David M. Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory, 55 YALE L.J. 467,478-90 (1946). But it still has force among the Justices. A unanimous Court, for example, recently confirmed the President's free-standing authority to "waive" or "suspend" provisions of law in the foreign affairs domain.
33. See Republic of Iraq v. Beaty, 129 S. Ct 2183, 2189(2009)
34. ("[T]he notion of the President's suspending the operation of a valid law. is well established, at least in the sphere of foreign affairs."); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,24-25 (2008) (evincing similar deference).
35. For cases involving fundamental rights see Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (rejecting religious liberty claim);
36. Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (holding that challenge to National Guard actions presented nonjusticiable political question);
37. see also Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981) (noting that "perhaps in no other area has the Court accorded Congress greater deference" than in military affairs).
38. See Dep't of the Navy v. Egan, 484 U.S. 518, 529 (1988) (declining to review "[p]redictive judgments]" concerning classified information made by the Navy in the course of employment decisions);
39. CIA v. Sims, 471 U.S. 159, 169-73 (1985) (showing similar deference to the judgment of the political branches on secrecy and classification issues). For an unusual and interesting counterexample involving the government's effort to present evidence in an espionage case without disclosures to the public
40. see United States v. Rosen, 487 F. Supp. 2d 703,716-17 (E.D. Va. 2007).
41. Boumediene v. Bush, 553 U.S. 723, 797 (2008). Similarly, in Hamdi, Justice O'Connor's plurality opinion cautioned that the "Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them."
42. Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004) (plurality opinion).
43. See Holder v. Humanitarian Law Project (HLP), 130 S. Ct 2705 (2010) (upholding 18 U.S.C. § 2399B(AXL), which makes it a crime to "knowingly providfe] material support or resources to a foreign terrorist organization," against First Amendment challenge);
44. see also Aziz Z. Huq, Preserving Political Speech from Ourselves and Others, 112 COLUM. L. REV. SIDEBAR 16 (2012)
45. (analyzing HLP in the larger context of the Roberts Court approach to political speech). On the use of material support offenses, see generally CTR. ON LAW & SEC, TERRORIST TRIAL REPORT CARD: SEPTEMBER 11, 2001-SEPTEMBER 11, 2010 (2010), available at http://www.lawandsecurity.org/Portals/O/documents/01- TTRC2010Final1.pdf.
46. See HLP, 130 S. Ct at 2727-30.
47. See, e.g., Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 505 (1984) (requiring appellate courts hearing speech cases to conduct an independent review of the facts);
48. Speiser v. Randall, 357 U.S. 513, 520 (1958) ("[T]he procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law").
49. HLP, 130 S. Ct. at 2724. At least one court of appeals has since construed HLP to apply strict scrutiny.
50. See Al Haramain Islamic Found, v. U.S. Dep't of the Treasury, 660 F.3d 1019, 1049 (9th Cir. 2011).
51. HLP, 130 S. Ct at 2727.
52. Strict scrutiny is not always fatal in feet See Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793, 796-97 (2006) (finding, based on survey of cases, about one in three laws survive strict scrutiny challenges, but survival rate varies according to right at issue). But the material support law, for reasons explained by Justice Breyer in dissent, was not a snug fit with its asserted policy justifications.
53. See HLP, 130 S. Ct at 2736-37 (Breyer, J., dissenting).
54. Munaf v. Geren, 553 U.S. 674, 681-83 (2008). Caveat lector the author was counsel for the habeas petitioners in this case. The following discussion, however, draws exclusively on material available in the public domain.
55. Indeed, the public record suggests cause for concern on this score. See Sam Dagher, Report Details Torture at Secret Baghdad Prison, N.Y. TIMES, Apr. 27,2010, at A9.
56. See Odah v. United States, 611 F.3d 8, 13-14 (D.C. Cir. 2010);
57. Al-Bihani v. Obama, 590 F.3d 866,875-76 (D.C. Cir. 2010).
58. Latif v. Obama, 666 F.3d 746, 752 n.3 (D.C. Cir. 2011). This claim is at odds with the fact that the government, without prompting by a federal court, has released almost eighty percent of those detained at Guantanamo.
59. See Anz Z. Huq, What Good Is Habeas?, 26 CONST. COMMENT. 385,401-04 (2010) (collecting and presenting data in graphical and tabular form). The Latif majority misstates the problem by imagining a world with only two categories: proper detentions and "fiame[d]" innocents. There is also a category of those who are detained simply in error, and there is no reason to believe that even the optimal approach to battlefield detentions will yield zero erroneous detentions.
60. Latif, 666 F.3d at 779 (Tatel, J., dissenting)
61. (quoting Parhat v. Gates, 532 F.3d 834, 849 (D.C. Cir. 2008)).
62. Almerfedi v. Obama, 654 F.3d 1,10 (D.C. Cir. 2011).
63. See, e.g., Holy Land Found, for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 (D.C. Cir. 2003).
64. But see People's Mojahedin Org. of Iran v. U.S. Dep't of State, 613 F.3d 220, 225-28 (D.C. Cir. 2010) (exercising closer review of the designation of an alleged terrorist organization that had been delisted in Europe and the United Kingdom).
65. Hamdi, 542 U.S. at 517-19 (plurality opinion).
66. Jenny S. Martinez, Process and Substance in the "War on Terror," 108 COLUM. L. REV. 1013,1045 (2008).
67. Hamdi, 542 U.S. at 542-46 (Souter, J., concurring).
68. For a scholarly development of this argument, see Deborah N. Pearlstein, Form and Function in the National Security Constitution, 41 CONN. L. REV. 1549, 1602-08 (2009);
69. accord GOODWIN LIU ET AL., KEEPING FAITH WITH THE CONSTITUTION 118 (2009) ("[Fidelity to the Constitution requires that we preserve, not abandon, the core principle of checks and balances by working within our system of divided power to meet new challenges through democratic means.");
70. Jules Lobel, Conflicts Between the Commander in Chief and Congress: Concurrent Power over the Conduct of War, 69 OHIO ST. L.J. 391,398 (2008) (making a similar claim on doctrinal grounds);
71. Deborah Pearlstein, The Constitution and Executive Competence in the Post-Cold War World, 38 COLUM. HUM. RTS. L. REV. 547, 573 (2007) ("The past five years have taught the United States a particularly painful lesson in just how counterproductive to its security interests excessive secrecy-and unchecked executive authority-can be in counterterrorism intelligence operations.").
72. Legislative deliberation, by including new perspectives and thus new information, and by focusing reasoned debate, has other virtues that may conduce to better decisions. See JEREMY WALDRON, LAW AND DISAGREEMENT 69-75 (1999) (setting forth virtues of collective deliberation).
73. THE FEDERALIST No. 10, at l26 (James Madison) (Isaac Kramnick ed., 1987) (explaining that in a republic, the legislature would "refine and enlarge the public views by passing them through the medium of a chosen body");
74. THE FEDERALIST No. 62, at 366 (James Madison) (Isaac Kramnick ed., 1987) ("The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions ")
75. See, e.g., Cass R. Sunstein, Minimalism at War, 2004 SUP. CT. REV. 47, 50-56, 75-99 (advocating that courts require clear congressional authorization of actions intruding on constitutional liberties).
76. See BRUCE ACKERMAN, BEFORE THE NEXT ATTACK: PRESERVING CIVIL LIBERTIES IN AN AGE OF TERRORISM 139 (2006) (arguing that courts should preserve the political equilibrium between the political branches);
77. Samuel Issacharoff, Political Safeguards in Democracies at War, 29 OXFORD J. LEGAL STUD. 189, 192 (2009) ("[Legislative oversight of executive conduct of war, both its engagement externally and its vigilance internally-is key to the survival of democracy under threat").
78. see also Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring) ("Separation of powers. operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority.").
79. Nixon v. United States, 506 U.S. 224, 244 (1993) (White, J., concurring) (further noting "the basic principles of checks and balances underlying the Constitution's separation of powers is clear");
80. see also THE FEDERALIST No. 49, at 314 (James Madison) (Isaac Kramnick ed., 1987) (endorsing the "purpose of maintaining the constitutional equilibrium of the government");
81. JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT 275 (1980) (arguing that each branch "has tremendous incentives jealously to guard its constitutional boundaries"). For an insightful critique of balancing arguments in the Separation of Powers context
82. see M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 VA. L. REV. 1127,1155-57 (2000) (arguing that ideas of balance or separation provide no determinate answer to institutional design questions).
83. Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 THEORETICAL INQUIRIES L. 1,5(2004).
84. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
85. Hamdi v. Rumsfeld, 542 U.S. 507,538 (2004) (plurality opinion).
86. The observation was made of Congress first in the classic article by Kenneth A. Shepsle, Congress Is a "They," Not an "It": Legislative Intent as Oxymoron, 12 INT'L. REV. L. & ECON. 239 (1992).
87. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd, 130 S. Ct 3138, 3168 (2010) (Breyer, J., dissenting).
88. R.G. Lipsey & Kelvin Lancaster, The General Theory of Second Best, 24 REV. ECON. STUD. 11,11 (1956). An allocation of resources or rights is optimal in the Paretian sense if there exists no other feasible allocation in which all individuals are at least as well-off, and at least one is strictly better off, than they were initially.
89. For applications of the theory in legal academia, see Adrian Vermeule, The Supreme Court, 2008 Term-Foreword: System Effects and the Constitution, 123, HARV. L. REV. 4, 7, 17-23 (2009).
90. [hereinafter Vermeule, Foreword]; Adrian Vermeule,Hume's Second-Best Constitutionalism, 70 U. Cm. L. REV. 421,421 (2003) [hereinafter Vermeule, Hume's Second-Best]
91. Robert E. Goodin, Political Ideals and Political Practice, 25 BRIT. J. POL. SCI. 37, 55-56 (1995). Resort to the President as a "fixer" of agency-level problems is a solution of this kind.
92. See PAUL PERSON, POLITICS IN TIME: HISTORY, INSTTTUTIONS, AND SOCIAL ANALYSIS 105 (2004) (noting that agencies are structured to "serve the interests of those who created" them).
93. Usually but not always. See William G. Howell & David E. Lewis, Agencies by Presidential Design, 64 J. POL. 1095 (2002) (analyzing creation of executive branch agencies by unilateral presidential action).
94. AMY B. ZEGART, FLAWED BY DESIGN: THE EVOLUTION OF THE CIA, JCS, AND NSC 8,42 (1999);
95. cf. Jonathan R. Macey, Organizational Design and Political Control of Administrative Agencies, 8 J.L. ECON. & ORG. 93 (1992) (suggesting that Congress pursues policy goals through agency design, for example, by deciding whether to create single- or multi-industry regulatory agencies).
96. See Gyung-Ho Jeong et al., Political Compromise and Bureaucratic Structure: The Political Origins of the Federal Reserve System, 25 J.L. ECON. & ORG. 472 (2008).
97. For a helpful introduction to current debates on the role of the Federal Reserve, see DAVID WESSEL, IN FED WE TRUST: BEN BERNANKE'S WAR ON THE GREAT PANIC (2009).
98. National Security Act of 1947, Pub. L. No. 80-253, 61 Stat 495 (codified in scattered portions of the U.S.C.); see JAMES E. BAKER, IN THE COMMON DEFENSE: NATIONAL SECURITY LAW FOR PERILOUS TIMES 105-10 (2007) (describing the National Security Council's functions). The term NSC may be confusing because it can refer to cabinet officers who staff that body, to the larger group of agency and department heads that meet with the cabinet officials, or even to the bureaucrats who make up the staff of the "organization by which the various views and capabilities of the U.S. government are reconciled, harmonized, and, ideally, knit together to create effective action."
99. DAVID J. ROTHKOPF, RUNNING THE WORLD: THE INSIDE STORY OF THE NATIONAL SECURITY COUNCIL AND THE ARCHITECTS OF AMERICAN POWER, at xiv (2005). I mean to reference all three aspects of the NSC in this discussion.
100. TIM WEINER, LEGACY OF ASHES: THE HISTORY OF THE CIA 24 (2007).
101. See RHODRI JEFFREYS-JONES, THE CIA AND AMERICAN DEMOCRACY 118 (3d ed. 2003) (describing the Agency as "accident-prone" and hobbled by faulty reasoning in the 1960s);
102. see also SHANE HARRIS, THE WATCHERS: THE RISE OF AMERICA'S SURVEILLANCE STATE 95-98 (2010) (documenting one example of legislative skepticism of the CIA's intelligence).
103. THOMAS FINGAR, REDUCING UNCERTAINTY: INTELLIGENCE ANALYSIS AND NATIONAL SECURITY 30 (2011).
104. See generally IAN JOHNSON, A MOSQUE IN MUNICH: NAZIS, THE CIA, AND THE RISE OF THE MUSLIM BROTHERHOOD IN THE WEST (2010) (arguing that post-World War II recruitment of Muslim soldiers from Central Asia into anti-Communist efforts morphed into more general support of the Muslim Brotherhood).
105. AMY B. ZEGART, SPYING BLIND: THE CIA, THE FBI, AND THE ORIGINS OF 9/11, at 80-83 (2007).
106. see also LOCH K. JOHNSON, THE THREAT ON THE HORIZON: AN INSIDE ACCOUNT OF AMERICA'S SEARCH FOR SECURITY AFTER THE COLD WAR 8 (2011) ("In a new, uncertain world, the CIA seemed to have lost its way."); id. at 366 (noting failure of intelligence reform efforts in the late 1990s).
107. Thomas H. Hammond, Why Is the Intelligence Community So Difficult to Redesign? Smart Practices, Conflicting Goals, and the Creation of Purpose-Based Organizations, 20 GOVERNANCE 401, 419 (2007).
108. PETER L. BERGEN, THE LONGEST WAR: THE ENDURING CONFLICT BETWEEN AMERICA AND AL-QAEDA 41 (2011).
109. ROBERT JERVIS, WHY INTELLIGENCE FAILS: LESSONS FROM THE IRANIAN REVOLUTION AND THE IRAQ WAR 178 (2010).
110. Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 CALIF. L. REV. 1655,1701 (2006).
111. See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458,118 Stat 3638 (2004).
112. See RICHARD A. POSNER, COUNTERING TERRORISM: BLURRED FOCUS, HALTING STEPS 21-22,33-69,108(2007).
113. Patrick C. Neary, Intelligence Reform, 2001-2009: Requiescat in Pace?, 54 STUD. INTELLIGENCE 1, 2-3 (2010);
114. see also James Kirchick, Turf Warrior, Can Dennis Blair Save U.S. Intelligence, NEW REPUBLIC, Jan. 25, 2010, at 12.
115. For another example of interagency conflict, SUMMARY OF THE WHITE HOUSE REVIEW OF THE DECEMBER 25, 2009 ATTEMPTED TERRORIST ATTACK 4 (2010), http://ww.wlutehouse.gov/sites/default/files/sunimaiy-of-wh-review-12-25-09.pdf [hereinafter WHITE HOUSE REVIEW] ("[T]he overlapping layers of protection within the [counterterrorism] community failed to track [the] threat in a manner sufficient to ensure all leads were followed.").
116. See Greg Miller, White House Intervenes as Intel Directors Bicker, CHI. TRIB., Dec. 29, 2009, at C13 (noting White House resolution of a dispute over the hierarchy of spies in foreign countries).
117. SEE SUSAN LANDAU, SURVEILLANCE OR SECURITY?: THE RISKS POSED BY NEW WIRETAPPING TECHNOLOGIES 243-48 (2010).
118. Dara Kay Cohen et al., Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates, 59 STAN. L. REV. 673,678, 693-94 (2006).
119. See Benjamin H. Friedman, Managing Fear: The Politics of Homeland Security, in TERRORIZING OURSELVES: WHY U.S. COUNTERTERRORISM POLICY IS FAILING AND HOW TO FDC IT 185,207 (Benjamin H. Friedman et al. eds., 2010).
120. See generally STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH (2008) (arguing in favor of broad presidential power to control the administration).
121. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2282, 2285-90 (2001);
122. see also Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94, COLUM. L. REV. 1,102-03 (1994) (making a "structural argument" for the unitary executive);
123. Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 ADMIN. L. REV. 181,185-88 (1986) (describing historical genesis of presidential review).
124. When both Congress and the President are competing for agency control, agencies have greater discretioa See Thomas H. Hammond & Jack H. Knott, Who Controls the Bureaucracy?: Presidential Power, Congressional Dominance, Legal Constraints, and Bureaucratic Autonomy in a Model of Multi-Institutional Policy-Making, 12 J.L. ECON.&ORG. 119, 143,162(1996).
125. Terry M. Moe & Scott A. Wilson, Presidents andthe Politics of Structure, 57 Law & CONTEMP. PROBS. 1, 11 (1994). For literature challenging this assumption
126. Terry M. Moe, The New Economics of Organization, 28 AM. J. POL. SCI. 739,768 (1984).
127. Compare Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106, COLUM. L. REV. 263, 267 (2006) (arguing against the "recurring claim that statutes conferring power on executive officials should be read to include the President as an implied recipient of authority")
128. with Saikrishna Bangalore Prakash, Hail to the Chief Administrator: The Framers and the President's Administrative Powers, 102, YALE LJ. 991, 991-94 (1993) (defending the view that the President retains constitutional authority to substitute his or her judgment for judgment of executive official delegated authority by Congress, even when Congress prohibits presidential intervention). Many important national security initiatives have been taken without a clear statutory allocation of authority to the White House.
129. Agency costs arise when a task is delegated to an agent for which care or effort is required, and for which the principal can observe outcomes, but not the agent's level of care or effort. If outcomes are imperfectly correlated with care and effort, the agent can exert suboptimal efforts or extract rents. Eric A. Posner, Agency Models in Law and Economics, in CHICAGO LECTURES IN Law and ECONOMICS 225 (Eric A. Posner ed., 2000).
130. See DAVID E. LEWIS, PRESIDENTS AND THE POLITICS OF AGENCY DESIGN: POLITICAL INSULATION IN THE UNITED STATES GOVERNMENT BUREAUCRACY, 1946-1997, at 29-30 (2003) (identifying possible trade-off). A further source of agency costs is inattention by agency officials to commands in the form of laws or internal instructions.
131. See JEFFREY L. PRESSMAN & AARON WlLDAVSKY, IMPLEMENTATION 165 (3d ed. 1984) (noting that "'street-level' bureaucrats are notorious for being too busy coping with their day-to-day problems to recite to themselves the policies they are supposed to apply");
132. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 YALE L.J. 1256, 1261-62 (2006). This observation raises questions about the efficacy of any system of formal rules as an instrument of internal adrninistrative control.
133. see also David E. lewis, THE politics of presidential appointments: political control and bureaucratic performance 30-42 (2008) (cataloguing forms of political control).
134. Cf. Timothy Naftali, Bund Spot: The Secret History of American COUNTERTERRORISM 315-16 (2005) (emphasizing political constraints on President Clinton's ability to respond aggressively to al-Qaeda).
135. see also Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 COLUM. L. REV. 1749, 1763-64 (2007);
136. Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260,1263-68 (2006) (documenting history of presidential review).
137. Policy makers are often better off if they are able to promulgate rules rather than engage in ad hoc policy direction. Finn E. Kydland & Edward C. Prescott, Rules Rather Than Discretion: The Inconsistency of Optimal Plans, 85 j. POL. ECON. 473,473-74 (1977).
138. Dana Priest & William m. arkin, Top Secret America: The Rise of the New American Security State 80 (2011).
139. For a summary of the historical evidence that presidents during the Cold War sought such plausible deniability, see frederick A.O. schwarz jr. & AZIZ z. HUQ, unchecked and Unbalanced: Presidential Power in a Time of Terror 37-43 (2007).
140. See Armen A. Alchian & Harold Demsetz, Production, Information Costs, and Economic Organization, 62 AM. econ. rev. 777,779-81 (1972).
141. See, e.g., DONALD F. KETTL, SYSTEM UNDER STRESS: HOMELAND SECURITY AND AMERICAN POLITICS 39 (2d ed. 2007) ("[T]he federal government [has] extraordinary expertise, but that expertise [is] highly compartmentalized") .
142. William E. Odom, Fixing intelligence: For a More Secure America 86-87 (2d ed. 2003);
143. See Philippe Aghion & Jean Tirole, Formal and Real Authority in Organizations, 105 J. POL. ECON. 1,3,27(1997).
144. David E. Lewis, Testing Pendleton's Premise: Do Political Appointees Make Worse Bureaucrats?, 69 J. POL. 1073,1074,1084-86 (2007).
145. Sean Gailmard & John W. Patty, Slackers and Zealots: Civil Service, Policy Discretion, and Bureaucratic Expertise, 51 AM. J. POL. SCI. 873, 874,886 (2007).
146. For example, the CIA resisted proposed reforms by President Carter's outsider nominee for DO, Stansfield M. Turner, who later commented that "he had been outmaneuvered by a bureaucracy that often treats outsiders like a hostile virus." Mark Mazzetti, A Difficult Road Awaits Panetta at the CIA, N.Y. TIMES, Jan. 9, 2009, at A19. President Obama's initial nominee, Leon Panetta, another outsider, faced similar resistance.
147. see also Mark Mazzetti, Obama Seeks to Mend Party Rift over Panetta, N.Y. TIMES, Jan. 7, 2009, at A15 ("Deciding whether the director of the CIA. should be chosen from within the agency or installed from outside has confounded American presidents since the agency was established after World War II as the successor to the Office of Strategic Services.").
148. In an October 2009 White House briefing, Saudi intelligence head Muhammad bin Nayef raised concerns about the growing al-Qaeda threat from Yemen, specifically warning of bombs sewn into clothing. Mark Hosenball et al., The Radicalization of Umar Farouk Abdulmutallab, newsweek, Jan. 11, 2010, at 37. Intelligence agencies failed to take this as a basis for additional aviation scrutiny.
149. Karen DeYoung & Michael A. Fletcher, U.S. Was More Focused on al-Qaeda's Plans Abroad Than for Homeland, Report on Airline Bomb Plot Finds, WASH. post, Jan. 8. 2010, at A1.
150. James Gordon Meek, Failure to Communicate. Bumbling Counterterror Agency Never Tried to Follow Up on Clues Month Before Bomb Try, N.Y. daily news, Dec. 31,2009, at 5.
151. WHITE house review, supra note 112, at 4; accord S. rep. no. 111-199, attempted terrorist attack on northwest airlines flight 253, at 1-2 (2010), available at http://mtelhgence.senate.gov/100518/report.pdf;
152. Paul Rosenzweig, Connecting the Dots and the Christmas Plot, Nat'L SEC. J. (Jan. 25, 2010, 7:50 AM), httpy/ww.liarvardnsj.com/2010/01/connecting-the- dots-and-the-christrnas-plot
153. An intelligence analyst identified email messages from Major Nidal Malik Hasan to Yemeni cleric Anwar al-Awlaki, who has promoted violence, but did not flag or forward that information. Scott Shane & James Dao, Investigators Study Tangle of Clues on Fort Hood Suspect, N.Y. times, Nov. 14,2009,atAl.
154. Dana Priest & William M. Arkin, A Hidden World, Growing Beyond Control, wash. post, July 19,2010, at Al.
155. Cycling refers to the instability of collective choice within multimember bodies such as legislatures. See generally KENNETH j. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963) (providing general conditions under which the exercise of collective choices through majority-rule voting does not yield stable outcomes);
156. Saul Levmore, Parliamentary Law, Majority Decisionmaking and the Voting Paradox, 75 Va. L. REV. 971, 984-88 (1989) (describing briefly cycling and the underlying voting paradox). Cycling is often thought to be resolved through agenda-setting mechanisms and other legislative rules.
157. Kenneth A. Shepsle & Barry R. Weingast, Structure-Induced Equilibrium and Legislative Choice, VI PUB. CHOICE 503, 507 (1981) (arguing that "institutional restrictions on the domain of exchange induce stability, not legislative exchange per se" (emphasis omitted));
158. see generally KEITH KREHBffiL, PIVOTAL POLITICS: A THEORY OF U.S. LAWMAKING 14-16 (1998) (exploring institutional solutions to cycling).
159. See Barbara Sinclair, The Role of Committees in Agenda Setting in the U.S. Congress, 11 LEGIS. STUD. Q. 35,37 (1986).
160. William N. Eskridge, Jr., Vetogates, Chevroa Preemption, 83 NOTRE DAME L. REV. 1441, 1444-48 (2008) (describing opportunities for House or Senate members to derail proposed legislation at "vetogates.").
161. see also George Tsebelis, Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism, 25 BRIT. J. POL. SCI. 289,293 (1995). The use of supermaj oritarian procedures, including both the veto override and the filibuster, means that it will often be the case that a losing coalition is larger than a mere majority.
162. See OFFICE OF HOMELAND SEC, NATIONAL STRATEGY FOR HOMELAND SECURITY 7 (2002), available at http://www.clhs.gov/xlibrary/assets/nat-strat-hls.pdf ("One fact dominates all homeland security threat assessments: terrorists are strategic actors Where we insulate ourselves from one form of attack, they can shift and focus on another exposed vulnerability.").
163. S.J. Res. 23,107th Cong., 115 Stat. 224 (2001). Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. No. 107-56, 115 Stat 272, 283 (codified in scattered titles and sections of the U.S.C.).
164. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004) (recognizing U.S. citizen's right of judicial review of grounds for military detention);
165. Rasul v. Bush, 542 U.S. 466, 473 (2004) (extending statutory habeas jurisdiction to Guantanamo Bay).
166. See Hamdan v. Rumsfeld, 548 U.S. 557,567 (2006).
167. See Military Commissions Act of 2006, Pub. L. No. 109-366, § 7, 120 Stat 2600, 2635-36 (codified in part at 28 U.S.C. § 2241 and note) (revoking any "court, justice, or judge['s]. .jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination"). This provision was invalidated in Boumediene. See Boumediene v. Bush, 553 U.S. 723,733 (2008).
168. See Foreign Intelligence Surveillance Act of 1978 Amendments Act of2008, Pub. L. No. 110-261, § 108, 122 Stat 2436, 2464; JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 90-94,181 (2007) (recounting enactment history).
169. For a classic discussion of electoral incentives in the federal legislative context, see DAVID R. Mayhew, Congress: the Electoral Connection 33-38 (1974).
170. Crime panics are also influenced by fear of new migrants, which may also play a role in the political dynamics of counterterrorism. See william J. stuntz, The collapse OF american criminal justice 23 (2011).
171. George E. Marcus et al., affective Intelligence and Political Judgment 4 (2000).
172. Katherine Beckett, Making Crime Pay: Law and Order in Contemporary american politics 11-12 (1997). It is at least worth considering whether a similar dynamic is at work in the counterterrorism domain.
173. Jide O. Nzelibe & Matthew C. Stephenson, Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design, 123 Harv. L. rev. 617, 640 (2010).
174. George Tsebelis, Veto Players and Law Production in Parliamentary Democracies: An Empirical Analysis, 93 am. POL. Sci. Rev. 591, 605 (1999). Tsebelis is describing parliamentary systems, but the point applies here.
175. David Epstein & Sharyn O'Halloran, Delegating powers: a Transaction Cost Politics Approach to policy Making Under Separate Powers 197 (1999).
176. See Bismullah v. Gates, 503 F.3d 137,138-39 (D.C. Cir. 2007).
177. See Amnesty Int'l USA v. McConneU, 646 F. Supp. 2d 633, 637-40 (S.D.N.Y. 2009) ("The certification required by the FAA must be supported, as appropriate, by the affidavit of any appropriate official in the area of national security who is appointed by the President, by and with the advice and consent of the Senate, or who is the head of an element of the intelligence community" (emphases added)).
178. William N. Eskridge, Jr., & John Ferejohn, The Article 1, Section 7 Game, 80 Geo. L.J. 523,528-32 (1992).
179. See Matthew [sic] D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. rev. 431, 442-44, 468-70 (1989);
180. Mathew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3
181. J.L. econ. & ORG. 243, 257-58 (1987) ("Administrative procedures, however, can be used to guide agencies to make decisions that are broadly consistent with the policy preferences of political principals."). 5 U.S.C. §§ 551-559,701-706 (2006).
182. Terry M. Moe, The Positive Theory of Public Bureaucracy, in perspectives ON public choice: A Handbook 455,468-69 (Dennis C. Muller ed., 1996).
183. cf Bismullah v. Gates, 514 F.3d 1291, 1294, 1295 n.4
184. (Ginsburg, C.J., concurring in denial of rehearing en banc) (analyzing status of Guantanamo Combatant Status Review Hearings, and concluding that even though they were "sui generis," they fell outside the APA); id. at 1300 n.3,1301 (Henderson, J., dissenting from denial of rehearing en banc) (reaching the same conclusion respecting the APA). Agency action related to national security that is covered by APA § 706(2XA) is subject to "highly deferential standard of review." Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007);
185. Holy Land Found, for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 (D.C. Cir. 2003) (similar). Furthermore, federal courts have declined to apply the otherwise generally applicable presumption of appellate review with respect to national security matters.
186. See Dep't of the Navy v. Egan,484 U.S. 518, 526-27 (1988);
187. Saavedra Bruno v. Albright, 197 F.3d 1153,1162 (D.C. Cir. 1999).
188. For an argument that habeas is now also ineffective in other domains, see Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. REV. 791,795,836-37 (2009).
189. See Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165,166(1984).
190. See Aziz Z. Huq, Against National Security Exceptionalism, 2009 SUP. CT. REV. 225, 236-40 (2009) (explaining transubstantive doctrinal developments, which include the reduced availability of injunctive relief).
191. Standing doctrine limits suits against perceived surveillance, see ACLU v. NSA, 493 F.3d 644, 653 (6th Cir. 2007), and render challenges to discriminatory investigative or policing measures difficult to mount
192. see Reno v. Am.-Arab AnuDiscrirnination Comm., 525 U.S. 471, 482-83 (1999)
193. (rejecting judicial inquiry into selective enforcement in immigration law); City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (vacating prospective injunction against iscrirninatory application of policing tactics). The Court of Appeals for the Second Circuit recently issued a decision allowing a challenge to classified electronic surveillance.
194. See Clapper v. Amnesty Int'l USA, 638 F.3d 118, 122 (2d Cir. 2011), cert, granted, No. 11-1025 (May 21,2012).
195. See, e.g., Ashcroft v. al-Kidd, 131 S. Ct 2074, 2085 (2011) (rejecting challenge to use of material witness detention on qualified immunity grounds);
196. Arar v. Ashcroft, 585 F.3d 559, 564 (2d Cir. 2009) (en banc) (dismissing suit based on insufficiency of allegations and absence of Bivens remedy);
197. El-Masri v. Tenet, 479 F.3d 296, 308-11 (4th Cir. 2007) (dismissal based on "state secrets" doctrine).
198. LOCH K. JOHNSON, A SEASON OF INQUIRY: CONGRESS AND INTELLIGENCE 6-11 (1988) (describing "failures of congressional oversight" of intelligence more generally in the 1960s and 1970s, and ascribing it to "the paralyzing awe engendered by the sheer size and complexity of the intelligence community");
199. R. Douglas Arnold, The Logic of Congressional Action 7 (1990) ("i assume that when legislators have to make a decision they first ask which alternative contributes more to their chances for reelection.").
200. Barry R. Weingast & William J. Marshall, The Industrial Organization of Congress; or Why Legislatures, Like Firms, Are Not Organized as Markets, 96 J. POL. ECON. 132, 136 (1988) (emphasis omitted);
201. accord KENNETH A. SHEPSLE, ANALYZING POLITICS: RATIONALITY, BEHAVIOR, and iNSTrrunoNS 313-14 (1996). Politicians in both branches are linked by shared membership in political parties; the variation of policy preferences among members of the same party may well be smaller than the variance among politicians within a single institution.
202. See generally Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2312, 2312-16 (2006) (emphasizing possibility of convergence in policy preferences of the executive and the legislature during periods of unified government). Ex ante it is hard to predict which branch will respond more closely to the national median voter. Just as the median legislator in the bicameral Congress might be close or far from the national median, so the functionally median voter in the Electoral College, who resides in one of a small number of contested states, may be far or close to the national median.
203. Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. REV. 1217, 1235-39 (2006).
204. See generally MANCUR OLSON, THE LOGIC of COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY of GROUPS 34 (1965) (analyzing comparative transaction costs of collective action for small and large groups).
205. Gary J. Miller, The Political Evolution of Principal-Agent Models, 8 ANN. REV. POL. SCI. 203,207,209-10 (2005).
206. See Steven Shavell, Risk Sharing and Incentives in the Principal and Agent Relationship, 10BELLJ.ECON.55(1979).
207. See timothy besley, principled AGENTS? THE political economy of good government 105-06 (2006).
208. For a succinct and elegant account of this agency problem and some examples of solutions, see Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the madisonian republic 141-50 (2010).
209. For a critical analysis of those solutions, see Aziz Z. Huq, Binding the Executive (by Law or by Politics), 79 U. CHI. L. REV. (formroming 2012).
210. See Claude Berrebi & Darius Lakdawalla, How Does Terrorism Vary Across Space and Time? An Analysis Based on the Israeli Experience, 18DEF.&peaceecon. 113,114,130(2007).
211. See Ethan Bueno de Mesquita, Conciliation, Counterterrorism, and Patterns of Terrorist Violence, 59 int'l org. 145 (2005) (developing formal model to explain observed increases in terrorist violence following concessions by states).
212. See richard k. betts, enemies of intelligence: knowledge & power in American National security 146-50 (2007) (canvassing pros and cons of centralization and pluralism);
213. richard A. posner, Preventing surprise attacks: intelligence reform in the Wake of 9/11, at 127-62 (2005) (challenging 9/11 Commission's recommendation of new centralization);
214. Ethan Bueno de Mesquita, Politics and the Suboptimal Provision of Countertenor, 61 int'l org. 9,10(2007).
215. Matthew L. Wald, Airport Efforts to Detect Explosives Expand, N.Y. TIMES, Feb. 18, 2010, at A16. More attention has, to be sure, been paid to Yemen, but in part this is a consequence of political change in that country.
216. See Greg Miller, Yemen Group a Top U.S. Worry; Intelligence Officials, in an Annual Terrorism Threat Report, Cite the Offshoot of al Qaeda, L.A. TIMES, Feb. 3, 2010, at A4. It remains to be seen whether the death of Anwar al-Awlaki, the most visible and publicly vilified al-Qaeda figure in Yemen, will lead to a drawdown of attention to that country.
217. Andrew Healy & Neil Malhotra, Myopic Voters and Natural Disaster Policy, 103 AM. POL. SCI. REV. 387,389-91,401 (2009).
218. Richard R. Lau & David P. Redlawsk, Advantages and Disadvantages of Cognitive Heuristics in Political Decision Making, 45 AM. J. POL. SCI. 951,955 (2001). Less sophisticated voters do worse with heuristics than without Id. at 966-67.
219. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 910-11 (1996). (Pubitemid 126408724)
220. See Jonathan Simon, Governing through Crime: How the War on Crime transformed american democracy and created a culture of fear 113-16 (2007).
221. See, e.g., Juan C. Zarate, Obama and Bush: Together on Terror Law, wall ST. J., Aug. 14,2010, at Al 1 (invoking ACLU criticism as evidence that Obama is sufficiently pro-security).
222. geoffrey r. stone, perilous times: free speech in wartime from the sedition act of 1798 to the war on terrorism 536 (2004).
223. See generally Cass r. Sunstein, Precautions Against What? The Availability Heuristic and Cross-Cultural Risk Perceptions, 57 ALA. L. rev. 75, 87 (2005) ("If people can easily think of such examples, they are far more likely to be frightened than if they cannot.").
224. See cass r. sunstein, worst-case scenarios 23 (2007) (discussing cognitive effects when "risks. suddenly come 'on screen,' making people believe that where they once were safe, they are now unsafe");
225. Christina E. Wells, Questioning Deference, 69 mo. l. rev. 903, 928-29 (2004).
226. Cass r. Sunstein, On the Divergent American Reactions to Terrorism and Climate Change, 107 COLUM. l. rev. 503,507 (2007).
227. Adrian Vermeule, Libertarian Panics, 36 rutgers lj. 871, 873 (2005) [hereinafter Vermeule, Libertarian Panics] (noting further that distorting information cascades may also go in either direction);
228. Dana r. Carney et al., The Secret Lives of Liberals and Conservatives: Personality Profiles, Interaction Styles, and the Things They Leave Behind, 29 pol. psychol. 807, 807 (2008).
229. John t. Jost et al., Political Ideology: Its Structure, Functions, and Elective Affinities, 60 ANN. rev. psychol. 307, 320 (2009).
230. For a detailed discussion of tmt and the social science research supporting the thesis, see tom A. Pyszczynskj et al., In the Wake OF 9/11: the psychology of terror 27-28, 37-80 (2003);
231. Sheldon Solomon et al., The Cultural Animal: Twenty Years of Terror Management Theory and Research, in handbook OF experimental Existential Psychology 13 (Jeff Greenberg et aL eds., 2004).
232. See Immo Fritsche et al., The Role of Control Motivation in Mortality Salience Effects on Ingroup Support and Defense, 95 J. personality & SOC. psychol. 524,525-26 (2008).
233. Jeff Schimel et al., Stereotypes and Terror Management: Evidence That Mortality Salience Enhances Stereotypic Thinking and Preferences, 77 J. personality & SOC. psychol. 905, 906 (1999);
234. see also Jennifer Crocker & Riia Luhtanen, Collective Self-Esteem andlngroup Bias, 58 J. personality & SOC. psychol. 60 (1990) (identifying a trait of "collective self-esteem" that predicts a tendency to derogate out-groups).
235. Darren w. Davis, Negative Liberty: Public Opinion and the terrorist attacks on America 77-78 (2007).
236. See generally George A. Bonanno & John T. Jost, Conservative Shift Among High-Exposure Survivors of the September 11th Terrorist Attacks, 28 basic & applied Soc. psychol. 311 (2006) (finding a conservative shift in Democratic, Republican, and Independent survivors of the 9/11 terrorist attacks).
237. For summaries of the field, see Mark Dechesne & Arie w. Kruglanski, Terror's Epistemic Consequences: Existential Threats and the Quest for Certainty and Closure, in handbook OF experimental existential psychology, supra note 250, at 247, 259-60 ("[Tjhreats of terror can culminate in ethnccentrism, outgroup derogation, and social judgments based on stereotypes. [due to] people's general increased need for firmness in judgment and beliefs.");
238. Johannes Ullrich & J. Christopher Cohrs, Terrorism Salience Increases System Justification: Experimental Evidence, 20 Soc. just. Res. 117(2007).
239. See karen stenner, the authoritarian dynamic 60-61 (2005).
240. See John T. Jost et al., Are Needs to Manage Uncertainty and Threat Associated with Political Conservatism or Ideological Extremity?, 33 personality & SOC. psychol. bull. 989, 995-96 (2007). This study used reminders of terrorism as a means of provoking death anxiety, and specifically addressed the possibility of bilateral movement to different extremes. Id at 993, 1004 ("[w]e found that uncertainty and threat management contribute independently to self-reported political conservativism, even after adjusting for ideological extremity.").
241. Mark J. Landau et al., Deliver Us from Evil: The Effects of Mortality Salience and Reminders of 9/11 on Support for President George W. Bush, 30 PERSONALITY & SOC. PSYCHOL. BULL. 1136, 1146 (2004).
242. For similar results in parallel experiments, see Florette Cohen et al., American Roulette: The Effect of Reminders of Death on Support for George W. Bush in the 2004 Presidential Election, 5 ANALYSES SOC. ISSUES & PUB. POL'Y 177, 183-85 (2005);
243. Matthew T. Gailliot et al., Self-Regulatory Processes Defend Against the Threat of Death: Effects of Self-Control Depletion and Trait Self-Control on Thoughts and Fears of Dying, 91 J. PERSONALITY & SOC. PSYCHOL. 49 (2006);
244. cf. Jennifer S. Lemer et al., Effects of Fear and Anger on Perceived Risks of Terrorism: A National Field Experiment, 14 PSYCH. SCI. 144 (2003) (finding fear and anger have different effects on risk perceptions).
245. JENNIFER L. MEROLLA & ELIZABETH J. ZECHMEISTER, DEMOCRACY AT RISK: HOW TERRORIST THREATS AFFECT THE PUBLIC 131, 140(2009).
246. A pair of studies conducted in parallel in Canada and the United States immediately after 9/11 found correlations between threat perceptions and reduced support for immigration in both countries. Gordon Hodson et al., Perceptions of Threat, National Representation, and Support for Procedures to Protect the National Group, in COLLATERAL DAMAGE: THE PSYCHOLOGICAL CONSEQUENCES OF AMERICA'S WAR ON TERRORISM 109, 116-22 (Paul R. Kimmel & Chris E. Stout eds., 2006) (finding "reciprocal and often reinforcing" interactions between threat perceptions and in-group solidarity).
247. see also marc j. hetherington & jonathan D. Weiler, Authorization & Polarization in American Politics 33,38-39 (2009) (reporting survey data to the same effect).
248. For more details on this national public opinion survey that focused on the public's views of their federal legislative representatives, see New Data Source on Congressional Elections, Cooperative Cong. Election Study (Sept. 22, 2011), http//projects.iq.harvard.edu/cces/announcements/new-data-source- congressional-elections.
249. In an important article, Professor Vermeule reviews two TMT studies and finds "ambiguous results to date." Adrian Vermeule, Emergency Lawmaking After 9/11 and 7/7, 75 U. chi. L. Rev. 1155,1168 (2008). He suggests that because mortality salience "causes stricter adherence to one's antecedent worldview" it will merely reinforce the conservative views of those with conservative priors and reinforce the libertarian views of those who favored rights ex ante. Id The result is "simultaneous and countervailing political effects." /c/. at 1167 (emphasis added).
250. It is not clear, however, that either of the studies that are cited in Emergency Lawmaking After 9/11 and 717 supports this conclusion. First, Professor Vermeule cites a 1992 experimental study that found reminders of mortality made conservatives "more favorable" to another conservative subject and "more unfavorable" toward a liberal subject. Jeff Greenberg et al., Terror Management and Tolerance: Does Mortality Salience Always Intensify Negative Reactions to Others Who Threaten One's Worldview?, 63 J. PERSONALITY & SOC. PSYCHOL. 212, 215 (1992). By contrast, liberals did not become more favorable to liberals and "became less unfavorable" toward conservatives. Id This is not a finding of countervailing effects.
251. Claude Berrebi & Esteban F. Klor, Are Voters Sensitive to Terrorism? Direct Evidence from the Israeli Electorate, 102 am. POL. SCI. rev. 279,287-88 (2008).
252. See Claude Berrebi & Esteban F. Klor, On Terrorism and Electoral Outcomes: Theory and Evidence from the Israeli-Palestinian Conflict, 50 J. conflict resol. 899,919 (2006).
253. Marc J. Hetherington & Michael Nelson, Anatomy of a Rally Effect: George W. Bush and the War on Terrorism, 36 PS: POL. SCI. & POL. 37- (2003).
254. Further evidence of how responses to disaster are shaped by extant partisan affiliations is supplied by Neil Malhotra & Alexander G. Kuo, Attributing Blame: The Public's Response to Hurricane Katrina, 70 J. POL. 1, 914 (2007);
255. see also Neil Malhotra, Partisan Polarization and Blame Attribution in a Federal System: The Case of Hurricane Katrina, 38 PUBUUS: J. FEDERALISM 651, 656 (2008) ("In the wake of Hurricane Katrina, there was significant partisan division with respect to which government figures deserved the most blame.").
256. See Cindy D. Kam & Jennifer M. Ramos, Joining and Leaving the Rally: Understanding the Surge and Decline in Presidential Approval Following 9/11, 72 PUB. OP. Q. 619, 628-30, 637 (2008).
257. See Gary C. Jacobson, Terror, Terrain, and Turnout: Explaining the 2002 Midterm Elections, 118 POL. SCI. Q. 1, 4-5 (2002);
258. see also James E. Campbell, Why Bush Won the Presidential Election of2004: Incumbency, Ideology, Terrorism, and Turnout, 120 POL. SCI. Q. 219, 225-26 (2005) (discussing effect of national security issues on 2004 election outcomes).
259. For some evidence of rational updating as well, see Darren W. Davis & Brian D. Silver, Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America, 48 AM. J. pol. SCI. 28, 35-36 (2004) (reporting statistically significant decline in support for civil liberties correlating with perceptions of sociotropic threat). By in-groups, I mean communities with which a person identifies on, say, religious, racial, or national grounds.
260. Donald r. kinder & Cindy D. Kam, Us Against Them: ethnocentric Foundations of American Opinion 31,44-52 (2009).
261. see also Cindy D. Kam & Donald r. Kinder, Terror andEthnocentrism: Foundations of American Support for the War on Terrorism, 69 J. pol. 320, 328 (2007) (providing evidence to the same effect).
262. See Leonie Huddy et al., Threat, Anxiety, and Support of Antiterrorism Policies, 49 AM. J. pol. SCI. 593,599(2005).
263. Neal Feigenson et al., Perceptions of Terrorism and Disease Risks: A Cross-National Comparison, 69 Mo. L. rev. 991, 995 (2004). The study broadly confirms the 'security panic' thesis. It identified overevaluation of terrorism risk and found that both fear and anger were "correlated with increased perceptions of risk to both self and others." Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat 1214 (codified as amended in scattered titles of the U.S.C).
264. See Aziz Z. Huq, Private Religious Discrimination, National Security, and the First Amendment, 5 HARV. L. & POL'Y REV. 347, 350-57 (2011) (collecting data showing trends in discrimination and examining possible explanations).
265. PETER MOREY & AMINA YAQIN, FRAMING MUSLIMS: STEREOTYPING AND REPRESENTATION AFTER 9/11, at 208 (2011).
266. Debates about the appropriate posture of courts to agency interpretations of statutes would continue unabated and unaffected between those who favor strong deference and those who prefer weak deference to the executive. These concern the application of the two-step process of Chevron U.SA. v. Natural Resources Defense Council, 467 U.S. 837 (1984), where it was determined that the government's interpretive action had the force of law.
267. See United States v. Mead Corp., 533 U.S. 218, 229 (2001) (applying the two-step process outlined in Chevron to hold that the United States Customs Agency was not entitled deference in determining a tariff classification).
268. Some commentators have suggested judicial review of agency action should be more accommodating of political considerations. See, e.g., Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 YALE L.J. 2, 8 (2009) ("[Wjhat count as 'valid' reasons under arbitrary and capricious review should be expanded to include certain political influences from the President, other executive officials, and members of Congress, so long as the political influences are openly and transparently disclosed in the agency's rulemaking record."). For the reasons developed in Part III, I am skeptical this would be wise in the counterterrorism domain.
269. But see John C. Yoo, Judicial Review and the War on Terrorism, 72 GEO. WASH. L. REV. 427,431 (2003) (arguing against judicial involvement in national security cases in abstract terms).
270. See, e.g., United States v. Rosen, 447 F. Supp. 2d 538, 546 (E.D. Va. 2006) (using in camera, ex parte review of evidence behind a surveillance warrant in order to ascertain whether defendants' Fourth Amendment rights had been violated);
271. see also United States v. Hammoud, 381 F.3d 316, 332 (4th Cir. 2004) (en banc) (endorsing same procedure and also reviewing the evidence de novo);
272. United States v. Squulacote, 221 F.3d 542 (4th Cir. 2000) (rejecting Confrontation Clause challenge to this kind of procedure).
273. See Classified Information Procedures Act, 18 U.S.C. app. 3 §§ 1-16 (2006); United States v. Lee, 90 F. Supp. 2d 1324,1325-26 (D.N.M. 2000) (describing statute's operation).
274. This is particularly the case in the First Amendment domain. See, e.g., Bose Corp. v. Consumers Union, Inc., 466 U.S. 485,505 (1984);
275. Speiser v. Randall, 357 U.S. 513,520 (1958).
276. Robert M. Chesney, National Security Fact Deference, 95 VA. L. REV. 1361, 1435 (2009).
277. For a cogent statement of this basic fact from a prominent jurist, see Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everyone Else Does), 3 SUP. CT. ECON. REV. 1, 28 (1993) ("The pleasure of judging is bound up with compliance with certain self-limiting rules that define the 'game' of judging.").