Procedural Experimentation and National Security in the Courts

Abstract

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