Judicial Deference Good- Diplomacy 1NC

Court involvement in military affairs leads to bad diplomacyKnowles 09 Knowles, Robert. Acting Assistant Professor, New York University School of Law. "American Hegemony and the Foreign Affairs Constitution."Ariz. St. LJ41 (2009): 87.Many of the rationales for special deferenceexpertise, embarrassment, uniformity, and secrecyhave, at their core, the assumption that the courts involvement in foreign affairs will risk serious collateral consequences in international relations that courts cannot anticipate, cannot fully understand, and do not have the power to adequately address.307 There are collateral consequences for court decisions in the domestic context as well. But the distinction drawn in foreign affairs reflects the tragic side of realismthat the world is inherently an unstable and dangerous place, an arena for clashes between great powers and under constant threat of war. In an international system in which the balance of power is precarious and preserved only through delicate maneuvering by statesmen, the courts involvement could risk provoking another great power and undermining these efforts. But once again, this justification, taken to its logical conclusion, requires complete deference. If courts truly lack any sense for the collateral consequences of their foreign affairs decisions, they cannot competently weigh those consequences against competing constitutional values. Suppose that the U.S. government advances a novel interpretation of antiterrorism statutes in order to prosecute a suspected terrorist whose release, the government insists, would create instability in a key U.S. ally in the Middle East. Under the collateral consequences justification, the court must defer to the governments interpretation. This would eviscerate entirely the courts statutory interpretation role whenever there is a claimed foreign affairs exigency.

Judicial Deference Good- Flexibility- 1NC

Breaking judicial deference to the executive in matters of intelligence gathering undermines executive flexibility.Yoo 14 John Yoo, Emanuel Heller Professor of Law at the University of California, Berkley, Visiting Scholar at the American Enterprise Institute, J.D. from Yale University, 2014 (NSA Spying Will Obama Lead or Punt to Courts, Congress and Harm the Presidency?, American Enterprise Institute, January 4th, Accessible Online at http://www.foxnews.com/opinion/2014/01/07/nsa-spying-will-obama-lead-or-punt-to-courts-congress-and-harm-presidency.html)Under Barack Obama, the presidencys control over national security intelligence has come under a [damaging] crippling cross-fire.From the right, in December Bush-appointed Judge Richard Leon found the National Security Agencys Orwellian phone records collection program to violate the Constitution.From the left, the White Houses own blue-ribbon commission recently urged the president to place an out of control NSA under unprecedented judicial, bureaucratic, and even private controls.If he makes the same mistake again, Mr. Obama will follow in the footsteps of failed presidents who shrunk before similar challenges, to the long-term harm of their office.Mr. Obama may rise up to defend the NSA from the growing chorus of critics in Congress, the media, and the antiwar wing of his own party.He might blunt the effort to subject the NSAs national security mission to the stricter rules that govern domestic law enforcement.He might even preserve the intelligence agencys ability to collect phone calls and email data that, by the account of two successive administrations of both parties, has stopped terrorist attacks on the United States and its allies.But dont count on it.Mr. Obamas first instinct is to shift national security responsibility to other branches of government witness his past attempts to try the 9/11 plotters in civilian court in New York City, move the terrorists in Guantanamo Bay, Cuba to a domestic prison, and ask Congress decide on intervening in Syria.If he makes the same mistake again, Mr. Obama will follow in the footsteps of failed presidents who shrunk before similar challenges, to the long-term harm of their office.Kicking the intelligence question to Congress or the courts undermines the Oval Office by reversing the polarity of its constitutional powers.The Framers created the presidency precisely because foreign affairs and national security pose unique challenges to a legislature, which cannot react quickly to sudden, unforeseen events.Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, Alexander Hamilton explained in Federalist 70.Only a single president could marshal the nations resources with the energy and vigor to effectively protect its security. Of all the cares or concerns of government, he added in Federalist 74, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.Presidents who have defied the Framers design have led the nation into some of its greatest disasters, despite their great intellect or political skills.

Executive flexibility is crucial to stopping terrorism, preventing WMD proliferation, deterring rogue nations, and staying in line with multilateral alliances. This trumps constitutionality the international scene is changing. Li 09 Zheyao, Candidate, Georgetown University Law Center; B.A., Political Science and History, Yale University, 2009 (War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare, Georgetown Journal of Law & Public Policy (Vol. 7, No. 1, p. 373) Available Online to Subscribing Institutions via Lexis-Nexis)IV. WAR POWERS IN THE FOURTH GENERATION OF WARFAREA. The Emergence of Non-State ActorsEven as the quantity of nation-states in the world has increased dramatically since the end of World War II, the institution of the nation-state has been in decline over the past few decades. Much of this decline is the direct result of the waning of major interstate war, which primarily resulted from the introduction of nuclear weapons.122 The proliferation of nuclear weapons, and their immense capacity for absolute destruction, has ensured that conventional wars remain limited in scope and duration. Hence, "both the size of the armed forces and the quantity of weapons at their disposal has declined quite sharply" since 1945.123 At the same time, concurrent with the decline of the nation-state in the second half of the twentieth century, non-state actors have increasingly been willing and able to use force to advance their causes. In contrast to nation-states, who adhere to the Clausewitzian distinction between the ends of policy and the means of war to achieve those ends, non-state actors do not necessarily fight as a mere means of advancing any coherent policy. Rather, they see their fight as a life-and-death struggle, wherein the ordinary terminology of war as an instrument of policy breaks down because of this blending of means and ends.124 It is the existential nature of this struggle and the disappearance of the Clausewitzian distinction between war and policy that has given rise to a new generation of warfare. The concept of fourth-generational warfare was first articulated in an influential article in the Marine Corps Gazette in 1989, which has proven highly prescient. In describing what they saw as the modem trend toward a new phase of warfighting, the authors argued that:In broad terms, fourth generation warfare seems likely to be widely dispersed and largely undefined; the distinction between war and peace will be blurred to the vanishing point. It will be nonlinear, possibly to the point of having no definable battlefields or fronts. The distinction between "civilian" and "military" may disappear. Actions will occur concurrently throughout all participants' depth, including their society as a cultural, not just a physical, entity. Major military facilities, such as airfields, fixed communications sites, and large headquarters will become rarities because of their vulnerability; the same may be true of civilian equivalents, such as seats of government, power plants, and industrial sites (including knowledge as well as manufacturing industries). 125It is precisely this blurring of peace and war and the demise of traditionally definable battlefields that provides the impetus for the formulation of a new theory of war powers. As evidenced by Part M, supra, the constitutional allocation of war powers, and the Framers' commitment of the war power to two co-equal branches, was not designed to cope with the current international system, one that is characterized by the persistent machinations of international terrorist organizations, the rise of multilateral alliances, the emergence of rogue states, and the potentially wide proliferation of easily deployable weapons of mass destruction, nuclear and otherwise.B. The Framers' World vs. Today's WorldThe Framers crafted the Constitution, and the people ratified it, in a time when everyone understood that the state controlled both the raising of armies and their use. Today, however, the threat of terrorism is bringing an end to the era of the nation-state's legal monopoly on violence, and the kind of war that existed before-based on a clear division between government, armed forces, and the people-is on the decline. 126 As states are caught between their decreasing ability to fight each other due to the existence of nuclear weapons and the increasing threat from non-state actors, it is clear that the Westphalian system of nation-states that informed the Framers' allocation of war powers is no longer the order of the day. 127 As seen in Part III, supra, the rise of the modem nation-state occurred as a result of its military effectiveness and ability to defend its citizens. If nation-states such as the United States are unable to adapt to the changing circumstances of fourth-generational warfare-that is, if they are unable to adequately defend against low-intensity conflict conducted by non-state actors-"then clearly [the modem state] does not have a future in front of it.' 128The challenge in formulating a new theory of war powers for fourth generational warfare that remains legally justifiable lies in the difficulty of adapting to changed circumstances while remaining faithful to the constitutional text and the original meaning. 29 To that end, it is crucial to remember that the Framers crafted the Constitution in the context of the Westphalian system of nation-states. The three centuries following the Peace of Westphalia of 1648 witnessed an international system characterized by wars, which, "through the efforts of governments, assumed a more regular, interconnected character."' 130 That period saw the rise of an independent military class and the stabilization of military institutions. Consequently, "warfare became more regular, better organized, and more attuned to the purpose of war-that is, to its political objective."'1 3 ' That era is now over. Today, the stability of the long-existing Westphalian international order has been greatly eroded in recent years with the advent of international terrorist organizations, which care nothing for the traditional norms of the laws of war.This new global environment exposes the limitations inherent in the interpretational methods of originalism and textualism and necessitates the adoption of a new method of constitutional interpretation. While one must always be aware of the text of the Constitution and the original understanding of that text, that very awareness identifies the extent to which fourth-generational warfare epitomizes a phenomenon unforeseen by the Framers, a problem the constitutional resolution of which must rely on the good judgment of the present generation. 13 Now, to adapt the constitutional warmarking scheme to the new international order characterized by fourth-generational warfare, one must understand the threat it is being adapted to confront.C. The Jihadist ThreatThe erosion of the Westphalian and Clausewitzian model of warfare and the blurring of the distinction between the means of warfare and the ends of policy, which is one characteristic of fourth-generational warfare, apply to al-Qaeda and other adherents of jihadist ideology who view the United States as an enemy. An excellent analysis of jihadist ideology and its implications for the rest of the world are presented by Professor Mary Habeck. 133 Professor Habeck identifies the centrality of the Qur'an, specifically a particular reading of the Qur'an and hadith (traditions about the life of Muhammad), to the jihadist terrorists. 134 The jihadis believe that the scope of the Qur'an is universal, and "that their interpretation of Islam is also intended for the entire world, which must be brought to recognize this fact peacefully if possible and through violence if not."' 135 Along these lines, the jihadis view the United States and her allies as among the greatest enemies of Islam: they believe "that every element of modern Western liberalism is flawed, wrong, and evil" because the basis of liberalism is secularism. 136 The jihadis emphasize the superiority of Islam to all other religions, and they believe that "God does not want differing belief systems to coexist."' 37 For this reason, jihadist groups such as al-Qaeda "recognize that the West will not submit without a fight and believe in fact that the Christians, Jews, and liberals have united against Islam in a war that will end in the complete destruction of the unbelievers.' 138 Thus, the adherents of this jihadist ideology, be it al-Qaeda or other groups, will continue to target the United States until she is destroyed. Their ideology demands it. 139To effectively combat terrorist groups such as al-Qaeda, it is necessary to understand not only how they think, but also how they operate. Al-Qaeda is a transnational organization capable of simultaneously managing multiple operations all over the world."14 It is both centralized and decentralized: al-Qaeda is centralized in the sense that Osama bin Laden is the unquestioned leader, but it is decentralized in that its operations are carried out locally, by distinct cells."4 AI-Qaeda benefits immensely from this arrangement because it can exercise direct control over high-probability operations, while maintaining a distance from low-probability attacks, only taking the credit for those that succeed. The local terrorist cells benefit by gaining access to al-Qaeda's "worldwide network of assets, people, and expertise."' 42 Post-September 11 events have highlighted al-Qaeda's resilience. Even as the United States and her allies fought back, inflicting heavy casualties on al-Qaeda in Afghanistan and destroying dozens of cells worldwide, "al-Qaeda's networked nature allowed it to absorb the damage and remain a threat." 14 3 This is a far cry from earlier generations of warfare, where the decimation of the enemy's military forces would generally bring an end to the conflict.D. The Need for Rapid Reaction and Expanded Presidential War PowerBy now it should be clear just how different this conflict against the extremist terrorists is from the type of warfare that occupied the minds of the Framers at the time of the Founding. Rather than maintaining the geographical and political isolation desired by the Framers for the new country, today's United States is an international power targeted by individuals and groups that will not rest until seeing her demise. The Global War on Terrorism is not truly a war within the Framers' eighteenth-century conception of the term, and the normal constitutional provisions regulating the division of war powers between Congress and the President do not apply. Instead, this "war" is a struggle for survival and dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature of the conflict, highlighted by an indiscernible distinction between wartime and peacetime, necessitates an evolution of America's traditional constitutional warmaking scheme.As first illustrated by the military strategist Colonel John Boyd, constitutional decision-making in the realm of war powers in the fourth generation should consider the implications of the OODA Loop: Observe, Orient, Decide, and Act. 44 In the era of fourth-generational warfare, quick reactions, proceeding through the OODA Loop rapidly, and disrupting the enemy's OODA loop are the keys to victory. "In order to win," Colonel Boyd suggested, "we should operate at a faster tempo or rhythm than our adversaries." 145 In the words of Professor Creveld, "[b]oth organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing their doctrine, doing away with much of their heavy equipment and becoming more like police."1 46 Unfortunately, the existing constitutional understanding, which diffuses war power between two branches of government, necessarily (by the Framers' design) slows down decision- making. In circumstances where war is undesirable (which is, admittedly, most of the time, especially against other nation-states), the deliberativeness of the existing decision-making process is a positive attribute.In America's current situation, however, in the midst of the conflict with al-Qaeda and other international terrorist organizations, the existing process of constitutional decision-making in warfare may prove a fatal hindrance to achieving the initiative necessary for victory. As a slow-acting, deliberative body, Congress does not have the ability to adequately deal with fast-emerging situations in fourth-generational warfare. Thus, in order to combat transnational threats such as al-Qaeda, the executive branch must have the ability to operate by taking offensive military action even without congressional authorization, because only the executive branch is capable of the swift decision-making and action necessary to prevail in fourth-generational conflicts against fourth generational opponents.

Judicial Deference Good- Hegemony- 1NC

Deference key to heg 5 reasonsKnowles 9 Acting Assistant Professor, New York University School of Law (Robert, Spring, American Hegemony and the Foreign Affairs Constitution, 41 Ariz. St. L.J. 87, Lexis Law)

1. Flexibility Because the world is inherently anarchic and thus unstable, flexibility is crucial. Because the meaning of international law changes with subtly shifting power dynamics, the United States must be capable of quickly altering its interpretation of laws in order to preserve its advantage and avoid war if possible. n295 Like Machiavelli's Prince, n296 the U.S. government [*135] must be willing and able to bend with the shifting political winds and transgress norms if necessary. n297 On this terrain, the executive branch appears to have clear advantages over the courts. The executive branch is more capable of altering its interpretation of the law when it suits U.S. interests. The courts must work within the confines of doctrine and stare decisis. n298 Courts cannot weigh in on the vast majority of foreign affairs issues because they only hear the controversies that parties bring before them, and have only the power to adjudicate the issues raised. n299 In short, courts' status as legal, rather than political, institutions limits their flexibility. Again, however, the anarchy-based argument for flexibility boils down to an argument for total discretion. How do the courts determine when and how much to cabin executive power? Jide Nzelibe has concluded that in cases involving individual rights, the courts should take into account their competence in adjudicating such issues while balancing the individual rights concerns against the need to defer to the executive branch's foreign policy requirements. n300 But if the courts lack competence to evaluate the importance of a foreign policy need, how can they competently weigh that need against the importance of protecting individual rights? 2. Speed Since Curtiss-Wright, speed has been recognized as an important executive branch characteristic. The executive branch can reach a uniform interpretation of the law quickly, and the courts are, by comparison, quite slow. n301 This is understandable in a world in which subtly-shifting alliances determine the balance of power. And in the age of terrorism, speed remains a crucial component of effective foreign policy. The ace card for defenders of special deference remains the national security emergency. How can we [*136] possibly take the risk that the courts will hobble the President's efforts to protect the United States in a time of crisis? n302 It is important to separate the very slender category of true emergencies from the vast category of foreign relations in general. The great majority of foreign affairs controversies do not involve the President sending troops abroad or a threatened terrorist attack, and there is very little opportunity for courts to interfere with an executive response to a crisis situation. Courts typically review the legality of presidential decisions years later. n303 Most of the "enemy combatants" detained at Guantanamo were captured within a few months of September 11, 2001, and arrived at Guantanamo in early 2002. n304 The Supreme Court did not address the detainees' constitutional right to habeas review until 2008. n305 The difficulty lies in situations where the courts are asked to use their equitable powers and issue injunctions or TROs before the issues have been fully adjudicated. Here it is the courts' institutional deliberativeness that is, arguably, the problem. n306 3. Secrecy Since Curtiss-Wright, secrecy has also been invoked as a rationale for deference to the executive in foreign affairs. n307 Again, this evokes a multipolar world in which diplomacy is conducted in private by an elite cadre from the great powers. However, courts are capable of handling secrets - even more skillfully than Congress. n308 The secrecy argument is really an argument about the potential consequences of revealing secrets to non-governmental parties and the collateral consequences that would result. [*137] 4. Collateral Consequences Many of the rationales for special deference - expertise, embarrassment, uniformity, and secrecy - have, at their core, the assumption that the courts' involvement in foreign affairs will risk serious collateral consequences in international relations that courts cannot anticipate, cannot fully understand, and do not have the power to adequately address. n309 There are collateral consequences for court decisions in the domestic context as well. But the distinction drawn in foreign affairs reflects the tragic side of realism - that the world is inherently an unstable and dangerous place, an arena for clashes between great powers under constant threat of war. In an international system in which the balance of power is precarious and preserved only through delicate maneuvering by statesmen, the courts' involvement could risk provoking another great power and undermining these efforts. But once again, this justification, taken to its logical conclusion, requires complete deference. If courts truly lack any sense of the collateral consequences of their foreign affairs decisions, they cannot competently weigh those consequences against competing constitutional values. Suppose that the U.S. government advances a novel interpretation of criminal statutes in order to prosecute a suspected terrorist whose release, the government insists, would create instability in a key U.S. ally in the Middle East. Under the collateral consequences justification, the court must always defer to the government's interpretation. This would eviscerate entirely the courts' statutory interpretation role whenever there is a claimed foreign affairs exigency. 5. Legitimacy Arguments for the courts' incompetence in foreign affairs also focus on legitimacy. Courts are said to lack legitimacy in this area because their ordinary power to bestow legitimacy on the other branches in the domestic context cannot function properly in the entirely political external realm. The political branches do not require the courts' blessing for their activities outside the U.S. n310 Furthermore, the courts seem to face a dilemma: If they contravene the executive branch, the public will view this involvement with [*138] hostility, especially when national security is at stake. n311 But if the courts side with the President, they risk being seen as mere cogs in the government's foreign policy apparatus. n312 However, some deferentialists acknowledge that courts should adjudicate foreign affairs cases involving individual rights claims but balance the right in question against the government's asserted foreign policy needs. n313 The difficulty with this approach is that, under the anarchy/realpolitik worldview, the government's arguments must always trump. If the courts are not competent to evaluate the importance of foreign policy necessity, then how can they weigh it against the value of individual rights? Similarly, if the courts lack legitimacy to evaluate foreign policy needs, their decisions will be perceived as lacking legitimacy whether individual rights are involved or not. Professors Ku and Yoo do not make a similar concession, at least with respect to non-citizens. They have concluded that, while the public may tolerate limited intervention to protect constitutional liberties in wartime, the public has no patience for the courts' interfering with executive prerogatives to reinforce the rights of aliens designated as enemies. n314 But in any event, the realist model seems to leave little room for the consideration of individual liberties, even for citizens.

Impact is nuclear warKnowles 9 Acting Assistant Professor, New York University School of Law (Robert, Spring, American Hegemony and the Foreign Affairs Constitution, 41 Ariz. St. L.J. 87, Lexis Law)

Nonetheless, foreign relations remain special, and courts must treat them differently in one important respect. In the twenty-first century, speed matters, and the executive branch alone possesses the ability to articulate and implement foreign policy quickly. Even non-realists will acknowledge that the international realm is much more susceptible to crisis and emergency than the domestic realm. But speed remains more important even to non-crisis foreign affairs cases. n391 It is true that the stable nature of American hegemony will prevent truly destabilizing events from happening without great changes in the geopolitical situation - the sort that occur over decades. The United States will not, for some time, face the same sorts of existential threats as in the past. n392 Nonetheless, in foreign affairs matters, it is only the executive branch that has the capacity successfully to conduct [*150] treaty negotiations, for example, which depend on adjusting positions quickly. The need for speed is particularly acute in crises. Threats from transnational terrorist groups and loose nuclear weapons are among the most serious problems facing the United States today. The United States maintains a "quasi-monopoly on the international use of force," n393 but the rapid pace of change and improvements in weapons technology mean that the executive branch must respond to emergencies long before the courts have an opportunity to weigh in. Even if a court was able to respond quickly enough, it is not clear that we would want courts to adjudicate foreign affairs crises without the deliberation and opportunities for review that are essential aspects of their institutional competence. Therefore, courts should grant a higher level of deference to executive branch determinations in deciding whether to grant a temporary restraining order or a preliminary injunction in foreign affairs matters. Under the super-strong Curtiss-Wright deference scheme, the court should accept the executive branch interpretation unless Congress has specifically addressed the matter and the issue does not fall within the President's textually-specified Article I powers.

Judicial Deference Good- Military Ops- 1NC

Breaking deference destroys foreign military ops causes diplomatic failure and intelligence breakdown/Judicial adjudication fails decentralization, lack of expertise, and protracted decision-making.Murray 09Kristian Murray, Judge Advocate, U.S. Army, Chief, Admin. Law, U.S. Army Central Command, Operational Command Post, Kuwait, JD from Gonzaga Law School, Spring 2009, (NATIONAL SECURITY VEILED IN SECRECY: AN ANALYSIS OF THE STATE SECRETS PRIVILEGE IN NATIONAL SECURITY AGENCY WIRETAPPING LITIGATION, https://www.jagcnet.army.mil/DOCLIBS/MILITARYLAWREVIEW.NSF/0/132c6b43e1e6335d852575900049e74f/$FILE/Article%201%20-%20By%20MAJ%20Kristian%20W.%20Murray.pdf)

2. National Security Matters Should Be Handled by the ExecutiveThe Judiciary is not better equipped than the Executive or Congress to handle foreign policy or national security matters. The Judiciary is decentralized, has a time-consuming adjudication process, and lacks expertise in the areas of foreign policy and national security.220 Conversely, the Executive acts with a unified voice in security-related matters, has a relatively quick decision and implementation process, and possesses the requisite knowledge and expertise in national security issues. Most importantly, the Executive has a constitutional responsibility to protect the United States.221There are ninety-four district courts, nine circuit courts, and one Supreme Court.222 Until appellate courts have adjudicated a matter, each of the district courts can have a differing opinion on a legal issue. This system works well for criminal or civil matters litigated in the respective district courts, as the courts are able to adjudicate matters relatively quickly within their jurisdictions without having to report to a higher authority. However, this decentralized system would be ineffective in adjudicating national security cases involving the invocation of the state secrets privilege. Commentators have argued that our nations forefathers framed the Constitution specifically to ensure that our government speaks with one voice in the context of foreign relations.223 Indeed, the district courts ruling in ACLU v. NSA, enjoining the NSA from conducting further terrorist electronic surveillance, aptly demonstrates the danger of allowing courts to adjudicate foreign policy matters.224 If the state secrets privilege were eliminated, cases involving legitimate government security programs such as the terrorist surveillance program could be subject to lengthy and arbitrary litigation in multiple district courts. Without the privilege, it would be very difficult for our intelligence community to engage in secret operations. This would have profound national security ramifications as government intelligence could be subject to judicial activism.However, assume for the sake of argument that the Executive is running a secret program that is blatantly unconstitutional and is in violation of applicable statutes, but is important to national security. Assume also that the program originates from this country with support of private corporations, but also receives technical support from other countries such as Pakistan and India. Further, the program receives unofficial support from operatives in Iran and Saudi Arabia who secretly route information originating from those countries to the American government.If this program were to be fully exposed in a judicial forum it likely would cause major diplomatic issues, damage national security through the exposure of methods, means, and sources, and jeopardize foreign country operatives. It would also risk the possibility of private industries failing to cooperate with the government in future operations to thwart national security threats. Under these circumstances, it seems reasonable that a court would uphold the Governments assertion of the state secrets privilege.

Judicial Deference Good- Nuclear Weapons- 1NC

Deference guarantees disclosure of nuclear secretsthat causes first strikes and nuclear terrorism Green 97 Associate at McNair Law Firm, JD Magna Cum Laude at Univ of South Carolina (Tracey Cotton, South Carolina Environmental Law Journal, 6 S.C Envtl. L.J. 137, Fall)

The deployment of nuclear weapons, however, is a DoD action for which secrecy is crucial and, thus, is classified by Executive Order. 59 According to the American policy of deterrence through mutually assured destruction (MAD), nuclear weapons are essential to an effective deterrent. 60 If DoD disclosed the location of these weapons, disclosure would reduce or destroy the deterrent. An adversary could destroy all nuclear weapons with an initial strike, leaving the country exposed to nuclear terror. 61 Additionally, terrorists would know where to strike to obtain material for nuclear blackmail. In short, secrecy regarding nuclear weapons has enormous implications for national security. While the armed services must consider the environmental effects of maintaining nuclear weapons, they cannot release any information regarding the storage of these weapons. However, some public interest groups have an agenda at odds with DoD and see NEPA's review process as a method of achieving their goals. Environmental groups generally distrust the efforts of federal agencies, and arms control groups want to hamper or stop weapons deployment. These groups sue the Army or Navy in court, requesting that the judiciary review the agency's actions, review or order the preparation of an EIS, and order the agency to conform to NEPA. 62 Through the suit, public review accompanies judicial review. In these situations, a conflict arises between the judiciary's duty to avoid interfering with national security and its duty to enforce federal law passed by Congress. 63 [*145]

Judicial Deference Good- Presidential Powers- 1NC

Judicial deference key to presidential powers and military decision-makingMasur 5 - Political Science Graduate from Stanford University, JD from Harvard Law School, Former Law clerk for Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit and for Chief Judge Marilyn Hall Patel of the U.S. District Court for the Northern District of California, and currently is a Professor at the University of Chicago Law School (Jonathan, Hastings Law Journal, 56 Hastings L.J. 441, February)

The perceived duty of courts and judges to defer to the factual assertions and judgments of executive branch actors in times of war represents the unifying principle of all modern wartime cases. "Deference" has become a shibboleth that courts believe they must invoke if their wartime rulings are to have any hope of withstanding appellate (and public) scrutiny. Even a court that eventually concludes that no deference is due the executive branch often appears compelled to recite a statement of judicial fealty to the deference principle for fear of signaling an inappropriate lack of respect for the authority of the coordinate branches in wartime. 14 Judicial deference to administrative decision-making in times of war remains inescapably and intuitively attractive. This Article should not be understood to suggest that courts should exercise anything approaching de novo review over executive decisions in military situations. Yet within wartime jurisprudence, the doctrine of judicial deference has overwhelmed the legal strictures established to constrain the operation of executive power. Courts sitting in judgment of the Executive's wartime actions have permitted the military to effectively define the constitutional scope of its own authority. [Continued] For nearly one hundred and fifty years, the judiciary's conception of the reach of the Executive's war-making powers has known few bounds. Beginning with The Prize Cases 20 in 1862, the Supreme Court has read the President's commander-in-chief power broadly to encompass nearly any necessary war-related actions, even without a formal declaration of war. 21 The Court's maxim, gleaned from Hirabayashi v. United States, that "the war power of the Government is "the power to wage war successfully,'" 22 has given rise to an understanding of presidential power that encompasses activities that do not involve the deployment of troops in the field, 23 such as the Japanese-American internment, as well as [*449] foreign policy making authority not directly tied to national security or the military. 24 In some cases, the Supreme Court has refused even to entertain cases that attempt to demarcate limitations on the President's constitutional military powers. 25 This expansive understanding of the President's wartime authority has led the Executive to argue that an entire range of military questions or executive measures are entirely beyond the court' reach as either non-justiciable or otherwise unsuitable for judicial review. Courts have accepted this argument most decisively in areas that hew closely to the actual mechanics of armed conflict, such as presidential decisions committing American forces to battle or selecting the means and mechanisms of waging war. 26 Yet the judiciary has hardly confined its [*450] deferential posture to such intimately military questions. 27 Courts have concluded that even administrative decisions implicating traditional judicial authority and significant constitutional or statutory legal structures must command substantial judicial deference. Prominent among the actions receiving such deference are detentions of American citizens who have not been charged with crimes.

Judicial Deference Good- Readiness- 1NC

Deference key to military cohesion and readinessjudicial interference kills itWilkinson 96 Chief Judge US Court of Appeals (Thomasson v. Perry, Fourth Circuit, Majority Opinion, 80 F.3d 915, 4/5, http://www.ncgala.org/cases/thomasson.htm, AD)

Aside from the Constitution itself, the need for deference also arises from the unique role that national defense plays in a democracy. Because our nation's very preservation hinges on decisions regarding war and preparation for war, the nation collectively, as expressed through its elected officials, faces "'the delicate task of balancing the rights of servicemen against the needs of the military.'" Weiss, supra (quoting Solorio v. United States, 483 U.S. 435, 447-48 (1987)). To the degree that the judiciary is permitted to circumscribe the national security options of our elected officials, it "decreases the ability of the political branches to impose their will on another [nation and at] the worst, it permits the imposition of the will of another [nation] on the United States." James M. Hirschhorn, The Separate Community: Military Uniqueness and Servicemen's Constitutional Rights, 62 N.C. L. Rev. 177, 237-238 (1983). After all, "unless a society has the capability . . . to defend itself from the aggressions of others, constitutional protections of any sort have little meaning." Wayte v. United States, 470 U.S. 598, 612 (1985). National defense decisions not only implicate each citizen in the most profound way. Such decisions also require policy choices, which the legislature is equipped to make and the judiciary is not. "Congress, working with the Executive Branch, has developed a system of military criminal and administrative law that carefully balances the rights of individual servicemembers and the needs of the armed forces." Sam Nunn, The Fundamental Principles of the Supreme Court's Jurisprudence in Military Cases, 29 Wake Forest L. Rev. 557, 566 (1994). While Congress and the President have access to intelligence and testimony on military readiness, the federal judiciary does not. While Congress and the members of the Executive Branch have developed a practiced expertise by virtue of their day-to-day supervision of the military, the federal judiciary has not. The judiciary has no Armed Services Committee, Foreign Relations Committee, Department of Defense, or Department of State. As the Supreme Court has noted, "the lack of competence on the part of the courts [with respect to military judgments] is marked." Rostker, supra. In fact, It is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Finally, the imprimatur of the President, the Congress, or both imparts a degree of legitimacy to military decisions that courts cannot hope to confer. Even when there is opposition to a proposed change --as when Congress abolished flogging in the 19th century or when President Truman ended the military's racial segregation in 1948, see Hirschhorn, supra --the fact that the change emanates from the political branches minimizes both the likelihood of resistance in the military and the probability of prolonged societal division. In contrast, when courts impose military policy in the face of deep social division, the nation inherently runs the risk of long-term social discord because large segments of our population have been deprived of a democratic means of change. In the military context, such divisiveness could constitute an independent threat to national security. Parallel to the deference owed Congressional and Presidential policies is deference to the decision-making authority of military personnel who "have been charged by the Executive and Legislative Branches with carrying out our Nation's military policy." Goldman v. Weinberger, 475 U.S. 503, 508 (1986). Judicial interference with the subordinate decisions of military authorities frustrates the national security goals that the democratic branches have sought to achieve. The Supreme Court has recognized the need for deference when facing challenges to a variety of military decisions: a policy that prohibited the wearing of headgear in certain circumstances, Goldman, supra (noting that the military is "a specialized society separate from civilian society"); an Air Force regulation that required service members to obtain permission before circulating petitions on bases, Brown v. Glines, 444 U.S. 348, 357 (1980) (noting that "the military must possess substantial discretion over its internal discipline"); a base policy that prohibited certain political activity on base premises, Greer v. Spock, 424 U.S. 828, 837 (1976) (noting "the special constitutional function of the military in our national life"); and military court-martial proceedings, Schlesinger v. Councilman, 420 U.S. 738, 757 (1975) (noting that "to prepare for and perform its vital role, the military must insist upon a respect for duty and discipline without counterpart in civilian life"). The need for deference also derives from the military's experience with the particular exigencies of military life. Among these is the attainment of unit cohesion--"the subordination of personal preferences and identities in favor of the overall group mission" and "the habit of immediate compliance with military procedures and orders." Goldman, supra. Should the judiciary interfere with the intricate mix of morale and discipline that fosters unit cohesion, it is simply impossible to estimate the damage that a particular change could inflict upon national security--"there is no way to determine and correct the mistake until it has produced the substantial and sometimes irreparable cost of [military] failure." Hirschhorn, supra.

Military effectiveness is key to deter large-scale aggression and prevent conflict escalationSpencer 3 (Jack, Senior Defense Policy Analyst @ Heritage, "Focusing Defense Resources to Meet National Security Requirements," 3/21, www.heritage.org/Research/NationalSecurity/bg1638.cfm)

Be prepared to fight with little or no warning in unanticipated places. The emergence of global communications, advances in technology, and the globalization of terrorism provide many opportunities for surprise attacks against the United States and its interests. Maintaining the ability to fight and win wars in diverse situations and environments can discourage many of America's enemies from hostile acts. Maintain adequate capability to deter aggression against America's allies. America faces enduring threats beyond terrorism, as demonstrated by North Korea's nuclear weapons program. There are nations in every region of the world that threaten America's vital interests in the near term. Assuring stability in those regions and protecting U.S. interests requires the ability to defeat any nation or group that threatens America's allies, which itself provides effective deterrence against large-scale aggression. This should include both conventional forces and other capabilities such as an effective ballistic missile defense and reliable nuclear forces. The Administration should take every step to strengthen its important alliances and be ready to respond forcefully and immediately to aggression against America's allies.

Judicial Deference Good- Terrorism- 1NC

Deference key to stop terrorismKnowles 9 Acting Assistant Professor, New York University School of Law (Robert, Spring, American Hegemony and the Foreign Affairs Constitution, 41 Ariz. St. L.J. 87, Lexis Law)

[*142] The United States qualifies as a global hegemon. In many ways, the U.S. acts as a world government. n341 It provides public goods for the world, such as security guarantees, the protection of sea lanes, and support for open markets. n342 After World War II, the U.S. forged a system of military alliances and transnational economic and political institutions - such as the United Nations, NATO, the International Monetary Fund, and the World Bank - that remain in place today. The U.S. provides security for allies such as Japan and Germany by maintaining a strong military presence in Asia and Europe. n343 Because of its overwhelming military might, the U.S. possesses what amounts to a "quasi-monopoly" on the use of force. n344 This prevents other nations from launching wars that would tend to be truly destabilizing. Similarly, the United States provides a public good through its efforts to combat terrorism and confront - even through regime change - rogue states. n345 The United States also provides a public good through its promulgation and enforcement of international norms. It exercises a dominant influence on the definition of international law because it is the largest "consumer" of such law and the only nation capable of enforcing it on a global scale. n346 The U.S. was the primary driver behind the establishment of the United Nations system and the development of contemporary treaties and institutional regimes to effectuate those treaties in both public and private international law. n347 Moreover, controlling international norms are [*143] sometimes embodied in the U.S. Constitution and domestic law rather than in treaties or customary international law. For example, whether terrorist threats will be countered effectively depends "in large part on U.S. law regarding armed conflict, from rules that define the circumstances under which the President can use force to those that define the proper treatment of enemy combatants." n348 These public goods provided by the United States stabilize the system by legitimizing it and decreasing resistance to it. The transnational political and economic institutions created by the United States provide other countries with informal access to policymaking and tend to reduce resistance to American hegemony, encouraging others to "bandwagon" with the U.S. rather than seek to create alternative centers of power. n349 American hegemony also coincided with the rise of globalization - the increasing integration and standardization of markets and cultures - which tends to stabilize the global system and reduce conflict. n350

Judicial Deference Good- Impact Overview

Magnitude outweighs these threats are uniqueKnowles 9 Acting Assistant Professor, New York University School of Law (Robert, Spring, American Hegemony and the Foreign Affairs Constitution, 41 Ariz. St. L.J. 87, Lexis Law)

The terrible 9/11 attacks altered foreign affairs scholarship and magnified the importance of functionalist arguments for expansive executive power and limited judicial review. n41 These arguments have generally focused on threats from terrorism and weapons of mass destruction. Scholars such as Eric Posner, Adrian Vermeule, and Bruce Ackerman argue that these threats are unique in history, that formalist understandings of the Constitution are inadequate to meet them, and that they require the speed, secrecy, and unity of decision-making found only in the executive branch. n42 John Yoo, who had in the past made a comprehensive case for special deference using both formalist and functionalist methods, emphasized the importance of functional [*98] considerations after 9/11. n43 Similar functional justifications lie at the core of Bush administration arguments against judicial review of executive policies regarding the interrogation, detention, and trial of suspected terrorists. n44

Timeframe outweighs deference is essential to respond to crisesKnowles 9 Acting Assistant Professor, New York University School of Law (Robert, Spring, American Hegemony and the Foreign Affairs Constitution, 41 Ariz. St. L.J. 87, Lexis Law)

Returning to domestic deference standards as a baseline clarifies the ways in which foreign affairs are truly "special." The best response to the special nature of foreign affairs matters does not lie simply in adopting domestic deference on steroids. Instead, accurate analysis must also take into account the ways in which the constitutional separation of powers already accommodates the uniqueness of foreign affairs. Many of the differences between domestic and foreign affairs play out not in legal doctrine, but in the relationship between the President and Congress. Under the hegemonic model, courts would still wind up deferring to executive branch interpretations much more often in foreign affairs matters because Congress is more likely to delegate law-making to the executive branch in those areas. n390

Only a risk its good democracy means that no matter what regulations are passed, deference will always be goodO'Connor 2 Associate, Steptoe & Johnson LLP; B.A., University of Rochester; M.S.Sc., Syracuse University; J.D., University of Maryland School of Law (John F., Fall, 2000, The Origins and Application of The Military Deference Doctrine, 35 Ga. L. Rev. 161, Lexis Law)

Thus, the military cases decided by the Supreme Court and the federal courts of appeals in the 1990s really were no different than the military cases of the 1980s, which in turn were no different than the military deference decisions issued by the Supreme Court from 1974-76. To the extent a constitutional challenge required a judgment as to the significance of the governmental interest involved in the legislation, courts must be exceedingly deferential to determinations by Congress and the President that they have struck the proper balance between military necessity and a respect for individual rights. The upshot of this manner of adjudication is that it remains extremely difficult for an individual litigant to argue successfully that his interest in individual rights is sufficient to overcome the considered judgment of the political branches with respect to military regulations. Unlike the Supreme Court's noninterference cases of the nineteenth and early-twentieth century, there will be a substantive review of the challenged regulations. However, so long as the American people elect leaders who are at all responsive to the desires of their constituencies, it is difficult to imagine Congress or the President approving regulations that are so oppressive to individual rights as to overcome the tremendous jurisprudential advantage afforded the political branches through the military deference doctrine. Moreover, and perhaps more properly, it is difficult to imagine military regulations oppressive enough to overcome the military deference doctrine without first triggering sufficient public opprobrium to cause Congress and the President to take corrective action before the courts are called upon to intervene.

Judicial Deference Good- Flexibility Link Ext

Deference key executive urgency and flexibilityPosner & Sunstein 7 -- * Kirkland & Ellis Professor of Law, University of Chicago AND** Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago (Eric A. and Cass R., 4/1/2007, "Chevronizing foreign relations law" Yale Law Journal, L/N)Critics of this transformation greatly fear executive overreaching, 180 and there is reasonable dispute about the extent of this risk and about how best to limit it; but critics and supporters agree that changes in the global environment jus tify at least some expansion of executive powers. A modern president, unlike George Washington, needs to be able to respond quickly to intercontinental ballistic missiles, cyberattacks, terrorist attacks, global financial crises, and other dange rs that will not wait for Congress to act. The critics of broad executive power have not argued that ambiguities in federal statutes should be construed by judges, rather than by the Pr esident and those who operate under him. To say this is not to take a stand on th e question whether the President can act on his own. It is merely to acknowledge that legislation often grants the executive some discretion to act rapidly in response to perceived threat sand hence the increase in executive power, usually made possible by statutes, has reflect ed a recognition by Congress itself of this pragmatic point. 181 In these circumstances, deference to the executives views on the meaning of ambiguous statutes, rather than invocation of the comity principles, is a step that seems at once modest and a bit late.

Judicial Deference Good- Flexibility Impact Ext- Prolif/Terror/War

Executive flexibility is crucial to preserving peace, stopping nuclear proliferation, preventing terrorism, and de-escalating regional hotspots.Blomquist 10 Robert F., Professor of Law, Valparaiso University School of Law. J.D., Cornell Law School; B.S., University of Pennsylvania, 2010 (The Jurisprudence Of American National Security Presiprudence, Valparaiso University Law Review (44 Val. U. L. Rev. 881) Available Online to Subscribing Institutions via Lexis-Nexis) A. Strategic Considerations of Institutional Design Coupled with Form and FunctionSupreme Court Justicesalong with legal advocatesneed to conceptualize and prioritize big theoretical matters of institutional design and form and function in the American national security tripartite constitutional system. By way of an excellent introduction to these vital issues of legal theory, the Justices should pull down from the library shelf of the sumptuous Supreme Court Library in Washington, D.C. (or more likely have a clerk do this chore) the old chestnut, The Legal Process: Basic Problems in the Making and Application of Law by the late Harvard University law professors Henry M. Hart and Albert M. Sacks.7 Among the rich insights on institutional design coupled with form and function in the American legal system that are germane to the Courts interpretation of national security law-making and decision-making by the President are several pertinent points. First, Hart and Sacks intellectual starting point was the interconnectedness of human beings, and the usefulness of law in helping us coexist peacefully together.8 By implication, therefore, the Court should be mindful of the unique constitutional role played by the POTUS in preserving peace and should prevent imprudent judicial actions that would undermine American national security. Second, Hart and Sacks, continuing their broad insights of social theory, noted that legal communities establish institutionalized[] procedures for the settlement of questions of group concern9 and regularize different procedures and personnel of different qualifications . . . appropriate for deciding different kinds of questions10 because every modern society differentiates among social questions, accepting one mode of decision for one kind and other modes for otherse.g., courts for judicial decisions and legislatures for legislative decisions11 and, extending their conceptualization, an executive for executive decisions.12 Third, Professors Hart and Sacks made seminal theoretical distinctions between rules, standards, principles, and policies.13 While all four are part of legal arrangements in an organized society,14 and all four of these arrangements are potentially relevant in judicial review of presidential national security decisions, principles and policies15 are of special concern because of the sprawling, inchoate, and rapidly changing nature of national security threats and the imperative of hyper-energy in the Executive branch in responding to these threats.16The Justices should also consult Professor Robert S. Summerss masterful elaboration and amplification of the Hart and Sacks project on enhancing a flourishing legal system: the 2006 opus, Form and Function in a Legal System: A General Study. 17 The most important points that Summers makes that are relevant to judicial review of American national security presiprudence are three key considerations. First, a conception of the overall form of the whole of a functional [legal] unit is needed to serve the founding purpose of defining, specifying, and organizing the makeup of such a unit so that it can be brought into being and can fulfill its own distinctive role18 in synergy with other legal units to serve overarching sovereign purposes for a polity. The American constitutional system of national security law and policy should be appreciated for its genius in making the POTUS the national security sentinel with vast, but not unlimited, powers to protect the Nation from hostile, potentially catastrophic, threats. Second, a conception of the overall form of the whole is needed for the purpose of organizing the internal unity of relations between various formal features of a functional [legal] unit and between each formal feature and the complementary components of the whole unit.19 Thus, Supreme Court Justices should have a thick understanding of the form of national security decisionmaking conceived by the Founders to center in the POTUS; the ways the POTUS and Congress historically organized the processing of national security through institutions like the National Security Council and the House and Senate intelligence committees; and the ways the POTUS has structured national security process through such specific legal forms as Presidential Directives, National Security Decision Directives, National Security Presidential Decision Directives, Presidential Decision Directives, and National Security Policy Directives in classified, secret documents along with typically public Executive Orders.20 Third, according to Summers, a conception of the overall form of the whole functional [legal] unit is needed to organize further the mode of operation and the instrumental capacity of the [legal] unit.21 So, the Supreme Court should be aware that tinkering with national security decisions of the POTUSunless clearly necessary to counterbalance an indubitable violation of the text of the Constitutionmay lead to unforeseen negative second-order consequences in the ability of the POTUS (with or without the help of Congress) to preserve, protect, and defend the Nation.22B. Geopolitical Strategic Considerations Bearing on Judicial Interpretation Before the United States Supreme Court Justices form an opinion on the legality of national security decisions by the POTUS, they should immerse themselves in judicially-noticeable facts concerning what national security expert, Bruce Berkowitz, in the subtitle of his recent book, calls the challengers, competitors, and threats to Americas future.23 Not that the Justices need to become experts in national security affairs,24 but every Supreme Court Justice should be aware of the following five basic national security facts and conceptions before sitting in judgment on presiprudential national security determinations.(1) National security policy . . . is harder today because the issues that are involved are more numerous and varied. The problem of the day can change at a moments notice.25 While [y]esterday, it might have been proliferation; today, terrorism; tomorrow, hostile regional powers26, the twenty-first century reality is that [t]hreats are also more likely to be intertwinedproliferators use the same networks as narcotraffickers, narco-traffickers support terrorists, and terrorists align themselves with regional powers.27(2) Yet, as worrisome as these immediate concerns may be, the long-term challenges are even harder to deal with, and the stakes are higher. Whereas the main Cold War threatthe Soviet Unionwas brittle, most of the potential adversaries and challengers America now faces are resilient.28(3) The most important task for U.S. national security today is simply to retain the strategic advantage. This term, from the world of military doctrine, refers to the overall ability of a nation to control, or at least influence, the course of events.29 Importantly, [w]hen you hold As further serious preparation for engaging in the jurisprudence of American national security presiprudence in hotly contested cases and controversies that may end up on their docket, our Supreme Court Justices should understand that, as Walter Russell Mead pointed out in an important essay a few years ago,35 the average American can be understood as a Jacksonian pragmatist on national security issues.36 Americans are determined to keep the world at a distance, while not isolating ourselves from it completely. If we need to take action abroad, we want to do it on our terms.37 Thus, recent social science survey data paints a picture of a country whose practical people take a practical approach to knowledge about national security. Americans do not bother with the details most of the time because, for most Americans, the details do not matter most the time.38 Indeed, since the American people do know the outlines of the big picture and what we need to worry about [in national security affairs] so we know when we need to pay greater attention and what is at stake. This is the kind of knowledge suited to a Jacksonian.39Turning to how the Supreme Court should view and interpret American presidential measures to oversee national security law and policy, our Justices should consider a number of important points. First, given the robust text, tradition, intellectual history, and evolution of the institution of the POTUS as the American national security sentinel,40 and the unprecedented dangers to the United States national security after 9/11,41 national security presiprudence should be accorded wide latitude by the Court in the adjustment (and tradeoffs) of trading liberty and security.42 Second, Justices should be aware that different presidents institute changes in national security presiprudence given their unique perspective and knowledge of threats to the Nation.43 Third, Justices should be restrained in second-guessing the POTUS and his subordinate national security experts concerning both the existence and duration of national security emergencies and necessary measures to rectify them. During emergencies, the institutional advantages of the executive are enhanced;44 moreover, [b]ecause of the importance of secrecy, speed, and flexibility, courts, which are slow, open, and rigid, have less to contribute to the formulation of national policy than they do during normal times.45 Fourth, Supreme Court Justices, of course, should not give the POTUS a blank checkeven during times of claimed national emergency; but, how much deference to be accorded by the Court is always a hard question and should be a function of the scale and type of the emergency.46 Fifth, the Court should be extraordinarily deferential to the POTUS and his executive subordinates regarding questions of executive determinations of the international laws of war and military tactics. As cogently explained by Professors Eric Posner and Adrian Vermeule,47 the United States should comply with the laws of war in its battle against Al Qaedaand I would argue, other lawless terrorist groups like the Talibanonly to the extent these laws are beneficial to the United States, taking into account the likely response of other states and of al Qaeda and other terrorist organizations,48 as determined by the POTUS and his national security executive subordinates.

Judicial Deference Good- Hegemony Ext- Secrets

Rejecting deference would result in releasing secret information and undermine US hegemonyKnowles 9 Acting Assistant Professor, New York University School of Law (Robert, Spring, American Hegemony and the Foreign Affairs Constitution, 41 Ariz. St. L.J. 87, Lexis Law)

11A related argument, and a justification for the one-voice rationale, is that the United States will be "embarrassed" by conflicting pronouncements from different branches of government. The risk of embarrassment plays a key role in the Curtiss-Wright homily on superior executive competence, and has been frequently mentioned in foreign affairs political question decisions since Baker v. Carr. n282 The core of the embarrassment justification is, possibly, that U.S. diplomats will be undermined in their delicate negotiations with other nations because court decisions that conflict with executive branch policy could baffle or even offend foreign officials. n283 But it is difficult to argue that foreign dignitaries will fail to understand how the branches of the U.S. government can reach different interpretations of the law. America's current structure of government has existed for almost 230 years. In the past, "other nations [were] asked to understand our complex constitutional system of checks and balances and we somehow managed to survive as a nation." n284 Other justifications that have been labeled as "embarrassment" are more compelling, however. Court proceedings could increase the risk of revealing sensitive information. Perhaps more importantly, judicial decisions could have unforeseen consequences that undermine U.S. interests, make the U.S. appear weak, and ultimately disrupt the delicate balance of power in international relations. This aspect is related to realpolitik, which I address in the next subpart.

Military control is key to U.S. hegemonyPosen 03 Barry R. Posen, Barry R. Posen is Professor of Political Science at the Massachusetts Institute of Technology and a member of its Security Studies Program. During the past academic year, he was a Transatlantic Fellow of the German Marshall Fund of the United States, Posen, Barry R. "Command of the commons: the military foundation of US hegemony."International Security28.1 (2003): 5-46.The nature and scope of U.S. military power should affect U.S. grand strategy choices. U.S. military power is very great; if it were not, no hegemonic policy would be practical, but that does not mean that every hegemonic policy is practical. Today, there is little dispute within the U.S. foreign policy elite about the fact of great U.S. power, or the wisdom of an essentially hegemonic foreign policy. Even before the September 11 terrorist attacks, the foreign policy debate had narrowed to a dispute between primacy and selective engagement, between a nationalist, unilateralist version of hegemony, and a liberal, multilateral version of hegemony. U.S. command of the commons provides an impressive foundation for selective engagement. It is not adequate for a policy of primacy Primacy, in particular, depends on vast, omnicapable military power, which is why the Bush administration pushes a military agenda that aims self-confidently to master the contested zones.135 President Bush and his advisers believe that the United States need not tolerate plausible threats to its safety from outside its borders. These threats are to be eliminated. Insofar as preventive war is difficult to sell abroad, this policy therefore requires the ability to act alone militarilya unilateral global offensive capability. The effort to achieve such a capability will cause unease around the world and will make it increasingly difficult for the United States to find allies; it may cause others to ally against the United States. As they do, the costs of sustaining U.S. military preeminence will grow. Perhaps the first problem that primacy will create for U.S. command of the commons is greater difficulty in sustaining, improving, and expanding the global base structure that the United States presently enjoys.

Judicial Deference Good- Nuclear Weapons Ext- State Secrets

The abandonment of the military deference doctrine would force the government to tell state secretsChesney 9 Professor, University of Texas School of Law (Robert M., October, NATIONAL SECURITY FACT DEFERENCE, 95 Va. L. Rev. 1361, Lexis Law)

Not all national security fact deference claims concern retrospective judgments as in Hamdi and Lindh. The executive branch also seeks deference on national security grounds in connection with predictions. Such claims rely on familiar themes of comparative institutional competence, however, and they prompt familiar objections sounding in terms of the judiciary's checking function. The debate regarding deference in the context of the state secrets privilege provides an apt illustration. The question of deference in the context of the state secrets privilege arose in United States v. Reynolds, a 1953 Supreme Court decision in which the government argued that "only the executive is in a position to estimate the full effects of ... disclosure," and that "unless the courts are to interfere in the administration of Government, they must trust in the judgment of the appointed administrator." n55 The plaintiffs responded that such deference would be contrary to the separation of powers, since it would leave the [*1377] executive branch unchecked. n56 The Supreme Court, for its part, expressed sympathy for the separation of powers critique, warning that "judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." n57 It therefore framed the question in terms of the government's obligation "to satisfy the court" that disclosure might harm security. n58 But the Court then went on to state that "where necessity is dubious" a mere "formal claim of privilege ... will have to prevail," thus implying that judges should in fact give strong deference to the executive's claim in at least some contexts. n59 Perhaps not surprisingly, no one appears to know quite what to make of this guidance despite decades of subsequent litigation involving the state secrets privilege. A recent oral argument before the Ninth Circuit in Hepting v. AT&T, a civil suit alleging that the telecommunications industry assisted the National Security Agency in conducting illegal surveillance in the United States, illustrates the point: Judge Harry Pregerson: Well, who decides whether ... something's a state secret or not? Deputy Solicitor General Gregory Garre: Ultimately, the courts do, Your Honor ... . And they ... apply the utmost deference to the assertion of the privilege and the judgments of the people whose job it is to make predictive assessments of foreign - Pregerson: Are you saying the courts are to rubberstamp the determination that the Executive makes that there's a state secret? Garre: We are not, Your Honor, and we think that the courts play an important role - [*1378] Pregerson: What is our job? Garre: Your job is to determine whether or not the requirements of the privilege have been properly met. And that includes the declaration, the sworn declaration of the head of the agency asserting the privilege, and the assertion that that individual asserting it has personal knowledge of the matter [at hand]. Pregerson: So we just have to take the word of the members of the Executive Branch that tell us it's a state secret. Garre: We don't - Pregerson: [Because] that's what you're saying, isn't it? Garre: No, Your Honor, what this Court's precedents say is the court has to give the utmost deference to the assertion, and the second part of the - Pregerson: But what does "utmost deference" mean? We just bow to it? Judge Michael D. Hawkins: It doesn't mean abdication, does it? Garre: It does not mean abdication, Your Honor, but it means the court gives great deference to the judgments of the individuals whose job it is to assess whether or not the disclosure or nondisclosure of particular information would harm national security ... . n60 The Ninth Circuit ultimately remanded in Hepting without reaching the merits, n61 but the same panel did proceed to the merits in a closely related case. In Al-Haramain Islamic Foundation v. [*1379] Bush, the panel began by asserting the independent nature of judicial review: We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, eye, and not to accept at face value the government's claim or justification of privilege. Simply saying "military secret," "national security" or "terrorist threat" or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege. n62 The court proceeded, however, to endorse a robust deference obligation: "we acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena." n63 This state of affairs has generated sharp criticism, n64 and may yet result in legislative reforms. n65 As things currently stand, however, deference in the state secrets scenario closely tracks the practice illustrated [*1380] in the other case studies. Courts are conscious that deference has costs in terms of reducing the judicial capacity to check the executive branch, but in some contexts they are loath to question the judgment of executive officials when push comes to shove.

Judicial Deference Good- Presidential Powers Ext- War Powers

Judiciary intervening in war powers constrains the President causes international instability Nzelibe and Yoo 6 (Jide Nzelibe, Professor of Law at Northwestern and John Yoo, Professor of Law at UC Berkeley, Rational War and Constitutional Design, The Yale Law Journal, Vol. 115, No. 9, The Most Dangerous Branch? Mayors, Governors, Presidents, and the Rule of Law: A Symposium on Executive Power (2006), pp. 2512-2541, http://www.jstor.org/stable/20455704)

D. The Dangers of judicial Intervention Faced with the prospect that congressional participation can sometimes play a salutary role in avoiding unnecessary wars, an antecedent question naturally arises. Should the courts decide if such a congressional role would be appropriate? Indeed, a recurring theme running through much of the Congress-first literature is that judicial intervention is necessary to vindicate the congressional role in initiating conflicts. But if one accepts the signaling model developed here, there are significant reasons why one ought to be wary of a judicial role in resolving war powers controversies. First, under our model of international crisis bargaining, judicial review would likely undermine the value of signals sent by the President when he seeks legislative authorization to go to war. In other words, it is the fact that the signal is both costly and discretionary that often makes it valuable. Once one understands that regime characteristics can influence the informational value of signaling, it makes sense that the President should have the maximum flexibility to choose less costly signals when dealing with rogue states or terrorist organizations. The alternative- a judicial rule that mandates costly signals in all circumstances, even when such signals have little or no informational value to the foreign adversary-would dilute the overall value of such signals. Second, judicial review would preclude the possibility of beneficial bargaining between the President and Congress by forcing warmaking into a procedural straitjacket. In this picture, judicial review would constrain the political branches to adopt only the tying hands type of signal regardless of the nature or stage of an international crisis. But the supposed restraining effect attributed to the tying hands signal can vary considerably depending on whether the democracy is deciding to initiate an international crisis or is already in the midst of an escalating crisis. Requiring legislative authorization may make it less likely that the democracy will be willing to back out of a conflict once it starts. Thus, tying hand signals and judicial insistence that the President seek legislative authorization will contribute to greater international instability once a conflict has already started.

Deference key to Presidential war powers Murphy et al 3 (Walter Murphy, Professor Emeritus at Princeton University, former Professor of Jurisprudence; James E. Fleming, Professor of Law at Boston University School of Law; Sotirios A. Barber, Professor of Political Science at the University of Notre Dame; Stephen Macedo, Professor of Politics and Director of the University Center for Human Values at Princeton; Hamdi v. Rumsfeld, American Constitutional Interpretation 3rd edition, September 2003, http://www.princeton.edu/aci/cases-pdf/aci3.hamdi4thcir.pdf)

The importance of limitations on judicial activities during wartime may be inferred from the allocation of powers under our constitutional scheme. The war powers ... invest "the President, as Commander in Chief, with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war." These powers include the authority to detain those captured in armed struggle. These powers likewise extend to the executive's decision to deport or detain alien enemies during the duration of hostilities, and to confiscate or destroy enemy property. Article III contains nothing analogous to the specific powers of war so carefully enumerated in Articles I and II. "In accordance with this constitutional text, the Supreme Court has shown great deference to the political branches when called upon to decide cases implicating sensitive matters of foreign policy, national security, or military affairs." The reasons for this deference are not difficult to discern. Through their departments and committees, the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not. The Constitution's allocation of the warmaking powers reflects not only the expertise and experience lodged within the executive, but also the more fundamental truth that those branches most accountable to the people should be the ones to undertake the ultimate protection and to ask the ultimate sacrifice from them. Thus the Supreme Court has lauded "[t]he operation of a healthy deference to legislative and executive judgments in the area of military affairs." Rostker v. Goldberg (1981). The deference that flows from the explicit enumeration of powers protects liberty as much as the explicit enumeration of rights. The Supreme Court has underscored this founding principle: "The ultimate purpose of this separation of powers is to protect the liberty and security of the governed." Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc. (1991). Thus, the textual allocation of responsibilities and the textual enumeration of rights are not dichotomous, because the textual separation of powers promotes a more profound understanding of our rights. For the judicial branch to trespass upon the exercise of the warmaking powers would be an infringement of the right to self-determination and self-governance at a time when the care of the common defense is most critical. This right of the people is no less a right because it is possessed collectively.

Judicial Deference Good- Readiness

Deference is key to readiness.Hudson, 1999 (Major Walter M, Judge Advocate General's Corps of the United States Army and Instructor of the Criminal Law Department, Military Law Review Volume 159, March, l/n)By granting the elected branches plenary and command power over the military, the Constitution links military control to the democratic will and the democratic process. Because the people will feel the burden of war, the elected branches can best respond to that will.223 Furthermore, in granting power to the elected branches to control the military, the Constitution acknowledges that the elected branches grant a degree of legitimacy to military policy that courts cannot. These elected branches can best reflect and respond to the societal consensus, a particularly relevant and important concern when dealing with national security.224 Of the three branches, the judiciary has the least competence to evaluate the militarys formation, training, or command. It has, as one court stated, no Armed Services Committee, Foreign Relations Committee, Department of Defense, or Department of State nor does it have the same access to intelligence and testimony on military readiness as does Congress or the President.225 The Supreme Court has thus repeatedly cited its own lack of competence to evaluate military affairs.226 To analyze the oft-criticized judicial deference to military matters, it is important to understand the structural differences between the ability of the elected branches and the courts to determine policy. The elected branches use regulatory decision making to determine policy. Regulatory decision-making, which is the creation of administrative policy through internal-rule formation, is a far more efficient means of policy making than adjudicated decisions.227 There are several problems with adjudication as a means of rule making. Adjudication is more costly and more time consuming. Years and millions of dollars can be spent in litigating one issue that involves one individual.228 Adjudication concerns itself with an individual remedy based upon a small set of controverted facts that are highly contextual and may or may not be applicable to a larger class of individuals.229 Furthermore, adjudication sets up elaborate procedures according to its ultimate goal-to determine whether a particular individual should prevail in a particular case.23o Dissenters, in particular Justice Brennan, have asserted that the Court decides issues that are far more technically complicated than adjudicating rather straightforward rules on di~cipline.~~ Yet that argument does not address rules formation in an administrative, as opposed to an adjudicative, system. Military policy-making is, by its nature, meant to do precisely what administrative policy-making does: allocate rights, benefits, and sanctions, among large groups using consistent standards.232 What makes military policy making along administrative rule-making lines even more advantageous is that the militarys primary concern is ensuring military discipline and combat effectiveness of units, rather than focusing primarily on individuals themselves. Applying consistent and predetermined norms among large groups is what administrative rule making is best equipped to do.233 Where Brennans argument may appear to be the most persuasive is where the potential penalties cut into the interests that the adjudicative process is best suited to protect-namely, constitutional protections. In dealing with constitutional protections, individual rights often trump majority concerns. Discerning whether individuals should be granted these protections may not be particularly complex, on the surface.234 When viewing the grant of constitutional protections in relation to the militarys goal-successful combat operations-this argument loses force. This is because simplicity as defined in civilian contexts often does not have the same meaning in the military context. Clausewitz, the Prussian general and author of the military classic, On War, once famously stated: Everything in war is very simple, but the simplest thing is Clausewitz terms all the uncertainties and problems that accompany wartime operations as Friction can be defined as the realm of uncertainty and chance, even more [is] it the realm of suffering, confusion, exhaustion, and fear237 that accompanies military wartime operations. All these exist to a much higher degree in war, because, as Clausewitz points out, in war, not only is chance and uncertainty a con- ~tant,*~* but also one side is trying to impose its will on its opponent, which is an animate object that reacts.239 In other words, in war, you are seeking to overcome an opponent who is reacting to (and may be anticipating) your movements, who is trying not only to defeat but to destroy you, and who may not be constrained by your own laws, customs, and behavior. It is not thus simply the lack of judicial competence in military affairs, but the effects that the lack of competence may have that is an additional friction in the military environment. The problem in applying a standard of review similar to the kind used for civilian society is not just that the court may err, but the ramifications of such an error given the uncertainty of conflict.240 An error in military policy making could impede military effectiveness and thereby jeopardize national security.241 These judicial decisions put the courts squarely into the political arena. Judges unwittingly become strategists-unelected and ill-equipped officials deciding matters of potentially ultimate importance. Judicial deference, therefore, is generally appropriate to military decision- making, and in particular, a unit commanders decision-making on extremism. Extremisms disproportionate impact on the community where it occurs is an impact that can only be magnified in a military unit. The best way to appreciate that impact is to look at the gravest danger posed by racial extremists-the violent hate crime. If the courts rely solely on the statistics that compare the few numbers of bias crimes committed in relation to total crimes, they may be misled about the effect on good order and discipline.242 The courts may not be aware of the totality of information about extremist hate crimes. The vast majority of bias-oriented crimes are crimes against persons, not property. These crimes are also more likely to involve physical assault than non-bias crimes.243 Usually, at least four or more individuals commit them.244 The median age group is among young Loosely associated individuals, not organized extremist groups, commit most hate crimes.246 Furthermore, the most explosive element about the crimes is not necessarily the criminal act. Rather, the race or bias motivation can cause a community to polarize and even to explode.247 This impact is essential to the militarys need for judicial deference to extremist policies-at both the local commander policy level and the Army policy level.

Judicial Deference Good- Terrorism Ext

Limiting deference undermines effective foreign policy and causes terrorismYoo, 2015 (John, law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute, Will Congress Reject Todays Dangerous NSA Ruling by Reauthorizing the Patriot Act? http://www.nationalreview.com/article/418072/will-congress-reject-todays-dangerous-nsa-ruling-reauthorizing-patriot-act-john-yoo)A federal appeals court in New York today grievously erred in blocking the National Security Agencys collection of telephone metadata the calling records, but not the conversations to detect terrorist attacks. Stripped of its flawed reasoning, the decision shows the blindness of the Left (one that also afflicts some libertarians) to the dire threat of foreign terrorism. Luckily, the decision will be of little import, because Congress will decide shortly whether to reauthorize or modify the NSA program, which will effectively overrule todays ruling even before it reaches the Supreme Court. In ACLU v. Clapper, the Second Circuit Court of Appeals showed its weak grip on reality. In the same week that two men attempted a Charlie Hebdolike attack in Dallas, the Court indulged in libertarian fantasies of a Big Brother state. In the very introduction to the courts opinion, Judge Gerard Lynch compared electronic surveillance in the wake of the 9/11 attacks to President Richard Nixons abuse of the NSA and the CIA to pursue the Democratic party and his other political enemies. RELATED: Republicans and the Patriot Act The substance of the opinion begins: In the early 1970s, in a climate not altogether unlike todays, t