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.
CIPA Creep: The Classified Information Procedures Act and Its Drift into Civil National Security Litigation,
Colum. Hum. Rts. L. Rev.
Available at: https://scholarship.law.columbia.edu/national_security_law/11