Why does the government sometimes tie its own hands in national security operations? Much of the caselaw and scholarship concerning national security rests on the assumption that the executive branch is institutionally prone to overreach – that, left to its own devices, it will inch ever closer to the line that separates illegal from legal, and sometimes enthusiastically leap across it. This article argues that the government sometimes adopts self-restraints that limit its ability to conduct operations it regards as legally justified. The article tries to explain these restraints by consulting public choice theory – in particular, the notion that government officials are rationally self interested actors who seek to maximize their respective welfare.
- Associate Professor of Law, Syracuse University College of Law and an Institute for National Security and Counterterrorism faculty member.