IV. THE DYNAMICS OF BIAS AND DEFERENCE
Before evaluating the factors that prompted judicial acquiescence in the material-witness context, it is important to highlight that the incomplete factual information available about these cases lends itself to speculation, not to conclusive determinations. The analysis is also limited by our inability to peer into the minds of the judges in these cases.
With those caveats in mind, there are at least two significant influences on the judiciary that merit closer examination: cognitive biases and pressure to defer. These potential explanations implicate different but equally important conceptions of judicial independence. They are not offered as alternative theories--both factors likely played a role in creating what one scholar has described as the "dangerously credulous Judiciary." (167)
The first explanation focuses on the judicial decision-making process and considers the extent to which the excess of caution in these cases may be attributable to cognitive biases. There is growing literature on the psychology of judging. (168) Although the neutral and detached role of the judiciary is often celebrated in Supreme Court opinions, (169) it is widely understood that judges are neither as independent nor as deliberative as these mythological descriptions suggest. (170) While the idealized vision of the judicial branch views it as immune from the partisanship that infects the "political" branches, (171) political scientists and judicial scholars have made a persuasive case that judicial decision-making is strongly influenced by a judge's attitudes. (172) Although those forces certainly impact judicial behavior, our system anticipates and tolerates attitudinal differences or preconceptions. (173)
The focus here is, instead, on the potential influence of impermissible biases or preconceptions. (174) The material-witness arrests and detentions occurred in the context of several factors that are known to impair decision-making. As such, it is appropriate to evaluate the role that those types of cognitive biases may have played in these cases. The following subsections explain the relationship between intuition and deliberation, consider the ways that perceptions of threat can be distorted, and examine the potential role of ethnic or religious biases.
Intuition, Deliberation, and Overconfidence
Researchers looking at the questions of how people make decisions generally agree that there are "two 'systems' of cognitive operations by which human beings evaluate risky situations." (175) The processes of the intuitive system are "spontaneous, intuitive, effortless, and fast," (176) and they generally operate as a subconscious "shortcut" for "more deliberative or analytic assessment." (177) While this intuitive system allows for more rapid decision-making, it is also more vulnerable to emotional influences and racial or ethnic biases. (178) By contrast, our deliberative system requires "effort, motivation, concentration, and the execution of learned rules." (179)
Chris Guthrie, Jeffrey Rachlinksi, and Andrew Wistrich have researched and written extensively about the ways that cognitive biases may distort judicial decision-making. (180) Their model "views judges as ordinary people who tend to make intuitive ... decisions, but who can override their intuitive reactions with complex, deliberative thought." (181) In fact, they have found some evidence that judges may actually be more skilled (than non-judges) at compensating for cognitive biases by forcing themselves to be deliberative when sensitive or troublesome issues arise. (182)
That being said, because all humans tend to be overconfident and because judges are presumed to have good judgment, there is a risk that judges may be less willing to acknowledge or correct their cognitive biases. (183) This overconfident bias can be particularly problematic in cases "where accurate judgments are difficult to make" and where the decision-makers "possess some expertise." (184)
Threat Assessment and Probability Neglect
Efforts to gauge risk under stress are vulnerable to well-established cognitive biases or distortions. Risk assessments often rely on what is called the "availability heuristic" which is the tendency to measure the probability of an event by the ease with "which instances or occurrences can be brought to mind." (185) When salient examples of worst-case scenarios like terrorist attacks can readily be brought to mind, individuals are vulnerable to "probability neglect." (186) Probability neglect describes the phenomenon where "[a]n intense, often highly visual reaction to the thought of a terrorist attack can easily crowd out judgments about probability." (187) A "'dreaded' risk" like a terrorist attack is perceived as more threatening "because it is potentially catastrophic, we lack control over terrorists, and we do not voluntarily become terrorist victims." (188)
A decade later, the significance of the 9/11 attacks in forging the country's foreign and domestic priorities is evident, as is their imprint on our national consciousness. Our collective national fear of another terrorist attack has been palpable. Executive branch rhetoric has continued to emphasize worst-case scenarios, in part to justify aggressive foreign policy decisions. (189) Judges have also described the threat in terrifying terms. In his dissent in the Hamdan v. Rumsfeld case, Justice Thomas emphasized the novel challenges of battling al Qaeda, which he described as:
[A] worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. (190) One federal judge evaluating the government's invocation of national security concerns in the First Amendment context provided this apt assessment of judicial vulnerability to probability neglect:
Inevitably, the events of 9/11 and the constant reminders in the popular media of security alerts color perceptions of the risks around us, including the perceptions of judges. The risks of violence and the dire consequences of that violence seem more probable and more substantial than they were before 9/11. (191) The point of this analysis is certainly not to suggest that the general fear of terrorism is unfounded. But that does not mean that the response has always been rational. (192) This research suggests that one possible explanation for judges' failure to consider alternatives to the arrests and detentions that were ordered in these cases was their subconscious overestimation of the risk of another terrorist attack. (193)
Religious, Ethnic, and National Origin Biases
Overestimating the likelihood of another terrorist attack is only part of the problem. Cognitive biases may also have distorted judicial perceptions of the dangerousness of the specific individuals in these cases. (194) The fact that these material witnesses all fit a specific profile raises questions about what role religious, ethnic, or national origin biases may have played in these cases.
Human Rights Watch summarized the demographic of the material-witness population in their report:
All of the seventy material witnesses [identified by Human Rights Watch] were men. All but one was Muslim, by birth or conversion. All but two were of Middle Eastern, African, or South Asian descent, or African-American. Seventeen were U.S. citizens. The rest were nationals of Algeria, Canada, Djibouti, Egypt, France, India, Ivory Coast, Jordan, Lebanon, Pakistan, Palestine, Qatar, Saudi Arabia, Sudan, Syria, Yemen. (195) Perceptions of groups of people are subject to particular cognitive biases. In general, our brains "cop[el with information overload" by sorting people "according to similarities in their essential features." (196) Even in studies where participants are randomly assigned to groups, people assume that members of their own group are similar to themselves and that members of the "out-group" are similar to each other. (197) Where there are actual differences between groups, the negative qualities or behaviors of out-group members are exaggerated and members of the out-group are increasingly viewed as all being alike. (198) As additional information comes in, people give more attention to information that confirms their expectations, (199) and tend to filter out "inconsistent information." (200)
Many scholars have considered, in analyses of a variety of post-9/11 investigative practices, the degree to which conclusions about "suspicion" or "dangerousness" are premised on race, ethnicity or religion. (201) Scholars debate the appropriateness of initially targeting some (or all) of these witnesses based on factors that certainly included their ethnicity and religious practices. (202)
In their assessments of the relative importance of various flight risk factors, judges in the material-witness cases seem to have accepted law enforcement officers' and prosecutors' skepticism of the extent to which traditionally weighty factors would deter flight. Instead, judges gave greater weight to speculation about witnesses' foreign ties and travel habits, the types of information deemed insufficient in Bacon, and factors which can obviously serve as proxies for race or ethnicity. (203) The fact that high-security detention was routinely deemed necessary to manage the risk of flight also suggests the influence of illegitimate biases. These outcomes generally confirm what psychologists predict: "[L]eft to their own devices in times of stress, people, including judges, tend to vastly exaggerate and react against the threats posed by disfavored groups." (204)
Before ending this analysis of cognitive biases, it is important to highlight and acknowledge one other cognitive...