Countering the Prominence Effect: How U.S. National Security Lawyers Can Fulfill Non-Prominent Humanitarian Objectives

How do nations decide whether to intervene militarily to prevent or stop genocide? How do military and intelligence officers determine the severity of physical or psychological harm to inflict on terrorism suspects? Should a nation escalate troop deployments during an armed conflict that is assessed to be unwinnable? Public officials confronting policy challenges like these must decide among many interests related to transnational security, morality, politics, and the rule of law. Historical evidence and findings from decision research suggest that officials will often decide in favor of security, even when that choice contradicts stated values and otherwise leads to suboptimal welfare outcomes. This Article explores opportunities for lawyers advising the U.S. president and other national security officials to change those outcomes. The prominence effect describes challenges in making quantitative tradeoffs among competing attributes and the likelihood that individuals will decide in favor of the more inherently important, defensible – i.e., prominent – attribute. This Article presents prominence as an impediment to faithful application of transnational humanitarian law because security considerations are more defensible than humanitarian considerations for decision makers and their advisors. Part I describes the research behind prominence and instances when it has been observed or hypothesized in global crises. Part II provides an overview of the national security attorney’s roles in a variety of U.S. national security settings.Part III proposes ways for those attorneys to help policy makers overcome prominence. Part IV discusses other opportunities to mitigate prominence in strategic decision-making processes.