Court opinions in the terrorism context are often distinguished by fact-finding that relates to risk assessment. These risk assessments — inherently policy decisions — are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result, courts are apt to defer to the government and require less evidence in support of measures that curtail civil liberties. This Article explores the body of behavioral applied science on biases and cognitive errors and examines post-9/11 case law through that discipline’s lens. The Article offers solutions for how courts should reach decisions that are less susceptible to psychological and cultural biases. In particular, courts should require the government to provide specific evidence supporting restrictions on civil liberties rather than accept speculative justifications. In addition, courts should disclose their anxiety and uncertainty over their own risk assessments, rather than cloaking them in empirical facts, the objectivity of which is always contested.
Risk Assessment, Cognitive Errors, Psychological Bias, Cultural Biases, Judicial Decision Making, National Security, Guantanamo, Terrorism
Place of Original Publication
Cardozo Law Review
35 Cardozo Law Review 1415 (2014)
Cover, Avidan Y., "Presumed Imminence: Judicial Risk Assessment in the Post-9/11 World" (2014). Faculty Publications. 591.