They Say: “Fear Clouds Effective Decision-making”
The “panic thesis” is incorrect. The influence of fear and panic on decision-making during emergencies is no different than the influence of fear and panic on decision-making during normal times. Critics hold that the immediate nature of decision-making in times of crises guarantees miscalculation. However, the reality is that no national emergency requires an immediate reaction; the systems takes time to make complex judgments about the appropriate response.
Posner and Vermeule 07 – Eric A., Kirkland and Ellis Distinguished Service Professor of Law and Arthur and Esther Kane Research Chair at the University of Chicago; Adrian, John H. Watson Professor of Law at Harvard University and previously Bernard D. Meltzer Professor of Law at the University of Chicago, 2007 (Terror In The Balance Security, Liberty, And The Courts, Published by Oxford University Press, ISBN 0-19-531025, p. 64-66)
Suppose now that the simple view of fear is correct and that it is an unambiguously negative influence on government decisionmaking. Critics of the deferential view argue that the supposed negative effect of fear justifies skepticism about emergency policies and, therefore, about the deferential view. The problem with this argument is that it implicitly assumes that fear has more influence on decisionmaking during emergencies than on decisionmaking during normal times. This assumption is not plausible. The panic thesis holds that citizens and officials respond to terrorism and war in the same way that an individual in the jungle responds to a tiger or snake. The national response to an emergency, because it is a standard fear response, is characterized by the same circumvention of ordinary deliberative processes: (i) the response is instinctive rather than reasoned, and thus subject to error; and (ii) the error will be biased in the direction of overreaction. While the flight reaction might have been a good evolutionary strategy on the savannah, in a complex modern society the flight response is not suitable and can only interfere with judgment. Its advantage—speed—has minimal value for social decisionmaking. No national emergency requires an immediate reaction, except by trained professionals, such as soldiers or police officers, who execute policies established earlier. Instead over days, months, or years people make complex judgments about the appropriate institutional response. And the asymmetrical nature of fear guarantees that people will, during a national emergency, overweight the threat and underweight other things that people value, such as civil liberties.
But if decisionmakers rarely act immediately, then the tiger story cannot bear the metaphoric weight that is placed on it. Indeed, the flight response has nothing to do with the political response to the bombing of Pearl Harbor or to the attacks on September 11. The people who were there—the citizens and soldiers beneath the bombs, the office workers in the World Trade Center and the Pentagon—no doubt felt fear, and most of them probably responded in the classic way. They experienced the standard physiological effects and (with the exception of trained soldiers and security officials) fled without stopping to think. It is also true that in the days and weeks after the attacks, many people felt fear, although not the sort that produces an irresistible urge to flee. But this kind of fear is not the kind in which cognition shuts down. Some people did have more severe mental reactions and, for example, shut themselves in their houses, but these reactions were rare. The fear is probably better described as a general anxiety or jumpiness, an anxiety that was probably shared by government officials as well as ordinary citizens.15
While, as we have noted, there is psychological research suggesting that normal cognition partly shuts down in response to an immediate threat, we are aware of no research suggesting that people who feel anxious about a medium-term or long-term threat are incapable of thinking, or thinking properly, or that they systematically overweight the threat relative to other values. Indeed, it would be surprising to find research that clearly distinguished “anxious thinking” and “calm thinking,” given that anxiety is a pervasive aspect of life. People are anxious about their children, about their health, about their job prospects, about their vacation arrangements, about walking home at night.16 So it is hard to see why anxiety about more remote threats, from terrorists or unfriendly countries with nuclear weapons, should cause the public or elected officials to place more emphasis on security than is justified and to sacrifice civil liberties unnecessarily. Quite the contrary, a standard view is that people ignore low-probability risks and that elected officials with short time horizons ignore remote ones; on this account, government will probably do too little to prevent terrorist threats, not too much.
Fear generated by immediate threats, then, may cause instinctive responses that are not rational in the cognitive sense, not always desirable, and not a good basis for public policy, but it is not this kind of fear that leads to restrictions of civil liberties during wartime. The internment of Japanese Americans during World War II may have been due to racial animus, or to a mistaken assessment of the risks; it was not the direct result of panic. Indeed, there was a delay of weeks before the policy was seriously considered.17 The civil libertarians’ argument that fear produces bad policy trades on the ambiguity of the word panic, which refers both to real fear that undermines rationality and to collectively harmful outcomes that are driven by rational decisions, such as a bank panic, in which it is rational for all depositors to withdraw their funds if they believe that enough other depositors are withdrawing funds. Once we eliminate the false concern about fear, it becomes clear that the panic thesis is indistinguishable from the argument that during an emergency people are likely to make mistakes. But if the only concern is that during emergencies people make mistakes, there would be no reason to demand that the Constitution be enforced normally during emergencies. Political errors occur during emergencies and during normal times; once the panic thesis is rejected there is no reason to think that political errors occur at a higher rate during emergencies such that judicial scrutiny should be heightened, despite all of the disadvantages described in chapter 1.
In sum, the panic thesis envisions decisionmakers acting immediately when in fact government policymaking moves slowly even during emergencies. Government is organized so that general policy decisions about responses to emergencies are made in advance, and the implementation of those policies during an emergency is trusted to security officials who have been trained to resist the impulse to panic. The notion of fear causing an irresistible urge to flee is a bad metaphor for an undeniable truth: during an emergency, the government does not have as much time for making decisions as it usually does, and as a result will make more errors than it usually does. But these errors will be driven by ordinary cognitive limitations and not the pressure of fear; thus, the errors will be normally distributed. It is as likely that the government will curtail civil liberties too little as too much.