Procedural Experimentation and National Security in the Courts
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California Law Review VOL. 106 AUGUST 2018 NO. 4 Copyright © 2018 by California Law Review, Inc., a California Nonprofit Corporation Procedural Experimentation and National Security in the Courts Shirin Sinnar* 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 DOI: https://doi.org/10.15779/Z382B8VC0B. Copyright © 2018 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * John A. Wilson Distinguished Faculty Scholar & Associate Professor of Law, Stanford Law School. Many thanks to Janet Alexander, Carmen Cheung, Jen Daskal, David Dyzenhaus, David Engstrom, Mohammad Fadel, Deborah Hensler, Ramzi Kassem, Alexi Lahav, Amalia Kessler, Dave Marcus, Jenny Martinez, Imran Maskatia, Tim Meyer, Jim Pfander, David Pozen, Kent Roach, Joanna Schwartz, Sudha Setty, Hina Shamsi, Ganesh Sitaraman, David Sklansky, Norman Spaulding, Steve Vladeck, Bob Weisberg, Ingrid Wuerth, and workshop participants at the Seattle Civil Procedure Workshop, the Bay Area Procedure Forum, the Junior Federal Courts Workshop, the Vanderbilt New Voices in Civil Justice Workshop, and faculty workshops at Stanford Law School and the University of Toronto Faculty of Law. I am grateful for research assistance from Margot Adams, Hannah Kieschnick, Mollie Miller, Adrienne Pon, Anna Porto, Colin Scott, Brandon Teachout, Reece Trevor, and the extraordinary librarians at Stanford Law School. 991 992 CALIFORNIA LAW REVIEW [Vol. 106:991 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 trans- substantive procedures, and distorted perceptions across the civil–criminal procedure divide. Introduction ............................................................................................ 993 I. The Judicial Role in “National Security” ............................................ 997 A. The Deference Debate ......................................................... 999 B. The Secrecy Rationale for Deference ................................ 1001 II. Procedural Experimentation Over National Security Secrecy ......... 1006 A. Centralization through Multidistrict Litigation ................. 1008 B. In Camera Review ............................................................. 1012 C. Cleared Counsel ................................................................ 1015 D. Court-Appointed Experts and Masters .............................. 1018 E. Facilitating Interlocutory Appellate Review ..................... 1021 F. Incremental and Dynamic Judicial Management .............. 1023 III. The Benefits of Procedural Experimentation ................................. 1026 A. Supplementing Adversarialism ......................................... 1027 B. Spurring the Development of Architecture to Protect Secrets 1030 C. Prompting Executive Reconsideration of Secrecy ............ 1032 D. Countering Cognitive Biases ............................................. 1033 E. Enabling Judicial Learning ................................................ 1036 IV. Secrecy Experimentation and Rule of Law Values ........................ 1037 A. The Due Process Question................................................. 1038 B. Transparency and Public Access to the Courts ................. 1040 C. Threats to Pluralism in Judicial Decision-Making ............ 1043 D. Concerns Over Bias ........................................................... 1045 E. Too Little, Too Late?......................................................... 1047 V. Implications for Civil Procedure ..................................................... 1049 A. Bottom-Up Procedural Innovation .................................... 1050 B. Trans-Substantive Diffusion Across Civil Procedure........ 1054 C. Diffusion Across the Civil-Criminal Procedure Divide .... 1055 2018] PROCEDURAL EXPERIMENTATION 993 Conclusion ............................................................................................ 1060 INTRODUCTION In June 2018, the Supreme Court upheld President Trump’s order banning citizens of multiple, largely Muslim, countries from entering the United States.1 Although the Court’s decision dismayed many for its willingness to overlook the president’s repeated expressions of religious animus, it represented only the latest example of judicial deference to the executive in national security cases. In the last fifteen years, individuals have brought hundreds of cases challenging government counterterrorism policies or national security practices. But courts have resolved few of these cases on the merits, blocking many at the outset on account of the state secrets privilege, standing and immunity doctrines, jurisdictional restrictions, pleading standards, restrictions on the judicial creation of implied constitutional remedies, and other doctrines.2 Although courts cite a range of doctrines as the basis for dismissing these cases, they often profess the same underlying concerns: the sense that courts lack the expertise or political accountability to decide complex, high-stakes questions; the fear that adjudication could reveal national security secrets; or the apprehension that managing highly sensitive information could present intractable administrability challenges. The government pushes hard to convince courts to defer to the executive branch’s positions or to decline review altogether, arguing that a failure to do so will expose the nation to grave threats for which the judges will bear responsibility. Faced with that specter, many courts choose not to intervene. As a result, allegations of human rights violations in a range of contexts—from immigrant detentions to torture to secret surveillance—go unheard.3 Victims of abuse rarely win compensation or even acknowledgment of rights violations, while executive policies remain largely unchecked by judicial review, and important questions of constitutional rights remain unanswered.4 1. See Trump v. Hawaii, No. 17-965, 2018 WL 3116337 (2018). 2. See Stephen I. Vladeck, The Demise of Merits-Based Adjudication in Post-9/11 National Security Litigation, 64 DRAKE L. REV. 1035, 1037–38 (2016); Ashley S. Deeks, The Observer Effect: National Security Litigation, Executive Policy Changes, and Judicial Deference, 82 FORDHAM L. REV. 827, 829 (2013); JAMES E. PFANDER, CONSTITUTIONAL TORTS AND THE WAR ON TERROR xiv–xv (2017). 3. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (refusing to authorize a Bivens claim for damages in a constitutional challenge to post-9/11 immigrant detentions); Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc) (refusing to authorize a Bivens claim for damages arising out of extraordinary rendition); Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc) (dismissing a challenge to extraordinary rendition and torture based on the state secrets privilege); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) (holding that plaintiffs failed to establish standing to challenge secret surveillance under the Foreign Intelligence Surveillance Act Amendments Act of 2008). 4. For more on the harm presented by this limited judicial review, see generally Vladeck, The Demise of Merits-Based Adjudication, supra note 2; PFANDER, supra note 2. 994 CALIFORNIA LAW REVIEW [Vol. 106:991 Despite this pattern, even before the lower courts invalidated several versions of the travel ban,5 some courts faced with national security questions did permit civil suits to proceed far enough to decide legal questions on the merits, afford litigants some relief, or influence state policy. So far, such cases remain unusual.6 Yet examining them reveals something interesting about the manner in which courts are working through national security cases: in permitting cases