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45 Colum. Hum. Rts. L. Rev. 668 (2013-2014)
CIPA Creep: The Classified Information Procedures Act and Its Drift into Civil National Security Litigation

handle is hein.journals/colhr45 and id is 683 raw text is: CIPA CREEP: THE CLASSIFIED INFORMATION PROCEDURES ACT AND ITS DRIFT INTO CIVIL NATIONAL SECURITY LITIGATION Ian MacDougall This Note documents an incipient trend in the courts and Congress, which I call CIPA creep, and investigates its implications for civil national security litigation. CIPA-the Classified Information Procedures Act-governs the use of classified information in federal criminal cases. No comparable statute exists in the civil context, where the judge-made state secrets privilege determines whether litigants may use sensitive government information. The prevailing scholarly and popular accounts hold that this privilege, in the tense post-9/11 security environment, transformed from a narrow evidentiary rule into a non-justiciability doctrine that cedes to executive branch officials the power to win dismissal of meritorious claims by asserting that litigation might implicate state secrets. CIPA creep is a reaction to that trend. Specifically, it describes efforts, by members of Congress and some federal judges, to import CIPA into the civil context to facilitate the litigation of cases that might otherwise face dismissal on a broad interpretation of the state secrets privilege. This Note collects, traces, and explicates those efforts. I. INTRODUCTION .............................................669 II. SECRET EVIDENCE, PUBLIC TRIALS ..................... ......673 A. Graymail Legislation: CIPA's Fraught Origins...... .....674 * J.D. Candidate 2014, Columbia Law School. Thanks to Professor Robert Ferguson and Samantha Fox for comments on drafts and to Professor Philip Bobbitt, Professor Jamal Greene, the Hon. Debra Livingston, and Aijun Jaikumar for helpful conversations. Special thanks to Beatrice Franklin for incisive edits and to the Columbia Human Rights Law Review staff for additional editorial assistance. Any errors or infelicities are mine and mine alone. Professor David Pozen shepherded this Note from its earliest incarnation to its final stages. He has been both an indispensable guide and, with respect to this Note and beyond, an invaluable mentor. To him most of all, I owe a deep debt of gratitude.

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