The Procedural Exceptionalism of National Security Secrecy
64 Pages Posted: 5 Apr 2017
Date Written: April 4, 2017
National security secrecy claims arise in civil, criminal, and even administrative proceedings. Despite the disparate doctrinal underpinnings of the default procedures in these various areas, courts similarly treat as exempt from normal process assertions of secrecy on the basis of national security. Moreover, because these claims so often arise as threshold issues, courts’ failure to police the boundaries of national security secrecy presents a secondary problem: secrecy decisions prevent litigants from reaching the merits of the dispute.
Treating national security secrecy claims as procedurally exceptional presents problems for both accuracy and legitimacy. Judicial outcomes are less accurate because, without rigorous judicial oversight, courts validate excessive secrecy claims. And the judiciary loses legitimacy for at least two reasons. First, the procedures currently employed are so facially inadequate that the general public perceives the process as flawed. Second, because courts treat these claims as procedurally exceptional across contexts, often no avenue exists for challenging particular government conduct, insulating it from review.
Remedies should go beyond mere admonishment that courts exercise more stringent oversight. Reforms must alter the litigation dynamics sufficiently to overcome the decision-making heuristics that affect judges’ ability to engage fully with national security secrets. Those remedies include both additional processes designed to elicit evidence and arguments not currently available for consideration, and procedures that would shift the cost of secrecy, in appropriate circumstances, from the individual litigant to the government.
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