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7-2012 Who Decides on Security? Aziz Rana Cornell Law School, [email protected]

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Recommended Citation Rana, Aziz, "Who Decides on Security?" (2012). Cornell Law Faculty Publications. Paper 1070. http://scholarship.law.cornell.edu/facpub/1070

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VOLUME44 JULY 2012 NUMBER5

Article

Who Decides on Security?

AzIZ RANA

Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in the has been toward greater-not less- executive centralization and discretion. This Article explores why efforts to curb presidential prerogative have failed so consistently. It argues that while constitutionalscholars have overwhelminglyfocused their attention on procedural solutions, the underlying reasonfor the growth of emergency powers is ultimately political rather than purely legal. In particular,scholars have ignored how the basic meaning of "security" has itself shifted dramaticallysince World War 11 and the beginning of the Cold War in line with changing ideas about popular competence. Paying special attention to the decisive role of actors such as Supreme Court Justice Felix Frankfurter and Pendleton Herring, co-author of 1947's National Security Act, this Article details how emerging judgments about the limits of popular knowledge and mass deliberationfundamentally altered the basic structure of security practices. Countering the pervasive wisdom at the founding and throughout the nineteenth century, this contemporary shift has recast war and external threat as matters too complex and specialized for ordinary Americans to comprehend Today, the dominant conceptual approach to security presumes that insulated decision-makers in the executive branch (armed with the military's professional expertise) are best equipped to make sense of complicated and often conflicting information about safety and self-defense. The result is that the other branches- let alone the public writ large-face a profound legitimacy deficit whenever they call for transparency or seek to challenge coercive security programs. Not surprisingly, the tendency of legalistic reform efforts has been to place greater decision-making power in the other branches and then to watch those branches delegate such power back to the executive. ARTICLE CONTENTS

I. INTRODUCTION: SECURITY, REFORM, AND THE ARGUMENTATIVE LOOP ...... 1419 II. SECURITY AND KNOWLEDGE IN THE ANGLO-AMERICAN TRADITION ...... 1426

A. HOBBES, EPISTEMOLOGICAL SKEPTICISM, AND DEMOCRATIC SECURITY ...... 1427 B. LOCKE AND THE CHOICE BETWEEN "POLE-CATS" AND "LIONS"...... 1431 III. LOCKEAN RATIONALITY IN THE EARLY AMERICAN REPUBLIC ...... 1436

A. ABUNDANCE, INSULARITY, AND THE FOUNDERS' CONSTITUTION ..... 1437 B. DEMOCRATIC INTELLIGENCE, JACKSONIAN POPULISM, AND MITCHELL V. HARMONY ...... 1442 IV. THE NEW DEAL, WORLD WAR II, AND THE RISE OF SECURITY EXPERTISE ...... 1451

A. THE GREAT DEPRESSION AND THE RULE OF EXPERTS ...... 1452 B. PENDLETON HERRING AND THE NEW NATIONAL SECURITY STATE... 1458 V. FELIX FRANKFURTER AND THE DEFERENTIAL COURT ...... 1469

A. MERIT, THE OPEN SOCIETY, AND COURT RESTRAINT ...... 1470 B. SECURITY, EXECUTIVE PRACTICE, AND THE FUNCTIONAL CONSTITUTION ...... 1475 C. CONTEMPORARY CASE LAW AND FRANK