Academic

Chesney on National Security Fact Deference

By Lawrence Solum

Robert Chesney (University of Texas ? School of Law) has posted National Security Fact Deference (Virginia Law Review, vol. 95, no. 6, 2009) on SSRN.  Here is the abstract:

The executive branch often urges judges to defer to it regarding disputed questions of fact in cases involving national security. Judges frequently comply, but they do not frequently offer a coherent justification for doing so. This bespeaks uncertainty and disagreement regarding the nature of such claims and the considerations that ought to inform resolution of them. My aim in this article is to alleviate this uncertainty, in hopes of shifting the practice of national security fact deference onto more defensible grounds.

I begin in Part I by illustrating how litigants and judges have approached national security fact deference claims in actual practice. The case studies provided in this section suggest not only that such claims can have a significant impact on the merits of a case, but also that judges and litigants are not entirely certain what to do with them. Fact deference claims in the national security setting more often are resolved with cliches than with detailed justifications as to why deference makes sense (or not) in a particular instance. This may be true for fact deference claims generally, of course, but it seems particularly pernicious that it should be so in the national security setting.

The remainder of the paper responds to this concern. Part II begins by offering an account of the nature of a fact deference claim. I contend that such claims are best understood as a species of decision rule. This account, derived from the literature of constitutional theory, is useful in that it draws our attention to a series of arguments and considerations that judges might consider in determining whether to defer in a particular instance. I collect these under the headings of core accuracy, weighted accuracy, prudence, and legitimacy. Part III follows with a discussion of potential objections to this project.

Part IV is the heart of my analysis. In it, I explore how the arguments identified in Part II might (or might not) apply in the setting of national security litigation. Because these considerations for the most part are sensitive to the circumstances of particular cases, we cannot and should not pursue a single model for resolving fact deference claims. We can, however, develop a number of insights that collectively point the way toward a more coherent approach to resolving national security fact deference claims. Among other things, for example, the analysis suggests that: (i) fact deference claims primarily turn on comparative institutional accuracy concerns, along with concerns about democratic accountability and institutional self-preservation; (ii) judges conducting comparative accuracy inquiries must account separately for the possibility that the executive has superior access to information and to expertise, and should require a showing that the executive actually and reliably exploited such advantages; (iii) arguments regarding the relative strength of the governmental, private, and social interests at stake in national security litigation frequently will be indeterminate, thus undermining the case for weighting the comparative accuracy inquiry so as to encourage false positives or false negatives; (iv) efficiency and secrecy concerns are better addressed through doctrinal mechanisms other than fact deference; and (v) arguments involving comparative institutional legitimacy, though quite common, do little or no separate work once one accounts for comparative accuracy, democratic accountability, and institutional self-preservation.

These insights of course will not eliminate disagreement in connection with national security fact deference claims. By providing a coherent theoretical justification for supporting such claims in limited circumstances, however, they will help to identify and curb unwarranted claims. The project thus contributes in a modest yet important way to the larger task of specifying the boundaries of the judicial role in national security affairs.

Full post as published by Legal Theory Blog on September 23, 2009 (boomark / email).