Procedural Experimentation and National Security in the Courts

Procedural Experimentation and National Security in the Courts

In the last fifteen years, individuals have brought hundreds of cases challenging government national security practices for violating human rights or civil liberties. Courts have reviewed relatively few of these cases on the merits, often deferring broadly to the executive branch on the grounds that they lack expertise, political accountability, or the ability to protect national security secrets. Yet in cases where courts have permitted civil suits to proceed far enough to decide legal questions, influence policy, or afford litigants relief, they have often experimented with new methods for managing the secret information implicated in many national security cases. These procedures include centralizing cases through Multidistrict Litigation, conducting in camera review of sensitive documents, pressing the government to provide opposing counsel access to secret evidence, appointing special experts of their own, facilitating interlocutory review, and deciding cases in an incremental and dynamic fashion. Illuminating this procedural experimentation, this Article contends that courts can address secrecy in national security adjudication in a tailored, pragmatic fashion, rather than deferring to the executive at the threshold. But this account also shows the limits of such strategies: where misapplied, some procedures may fall short of due process, undermine norms of public access and transparency in the courts, reduce pluralism in the adjudication of disputes, or import bias into judicial decision-making. Together, this suggests that courts should adopt these procedures cautiously and with case-specific assessment of their costs and benefits. Panning out from national security litigation, the Article also offers a set of secondary insights for civil procedure more generally: it highlights the role of the executive branch in making procedural law, the costs of certain transsubstantive procedures, and distorted perceptions across the civil–criminal procedure divide.

 

PDF

More in this Issue

The Changemaker Lawyer: Innovating the Legal Profession for Social Change

As lawyers today confront existential challenges to their profession, from globalization to technological change, they face demands to innovate. In a world of rapid change, individuals must have certain skills to succeed; they must be “changemakers.” Changemakers are individuals who harness innovation to solve social challenges, a notion arising from the global movement of social […]

Presidential Obstruction of Justice

Federal obstruction of justice statutes bar anyone from interfering with official legal proceedings based on a “corrupt” motive. But what about the president of the United States? The president is vested with “executive power” which includes the power to control federal law enforcement. A possible view is that the statutes do not apply to the […]

Trademark’s Judicial De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly

Trademark law has de-evolved. It has transitioned from an efficient mechanism for ensuring competition into an inefficient regime for capturing economic rents. In this Article, I focus on the role that party self-interest has played in biasing the evolution of trademark law. This self-interest tends to lead parties to (1) challenge efficient legal rules and […]

Patriotic Philanthropy? Financing the State with Gifts to Government

This Article offers a positive and normative account of an important and growing trend: wealthy individuals are increasingly giving their money to the government to encourage the government to fund particular projects that these individuals want the government to pursue. Such gifts—dubbed “patriotic philanthropy” by one prominent donor—raise fundamental questions about the role that private […]

Debunking Pre-Arrest Incident Searches

The “search incident to arrest” exception to the Fourth Amendment’s warrant requirement permits officers to search a suspect upon making an arrest. It is the most commonly invoked justification for unconsented-to searches; indeed, incident searches far exceed searches conducted with a warrant. This seemingly straightforward exception has wilted in recent years as courts have done […]