Law Commons^™

Cipa Creep: The Classified Information Procedures Act And Its Drift Into Civil National Security Litigation, Ian Macdougall

National Security Law Program

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 …

Square Pegs And Round Holes: Moving Beyond Bivens In National Security Cases, Alexander Steven Zbrozek

National Security Law Program

Since its inception, the Supreme Court has largely orphaned the Bivens doctrine, a child of its own jurisprudence. In doing so, the Court has repeatedly invoked dicta from the Bivens case warning that unspecified “special factors counseling hesitation” could preclude judicial recognition of future constitutional remedies. Picking up on this thread, lower courts have notably limited the justiciability of Bivens claims in cases challenging counterterrorism-related government conduct. This so-called “national security exception” to the Bivens doctrine has created a substantial hurdle to individual justice and government transparency.

This Note therefore proposes the creation of an Article I administrative court with …

Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew C. Waxman

Faculty Scholarship

Weapon systems are becoming increasingly automated and arguably some autonomous military systems have been deployed for years. Recent advances in automated systems and the possibilities they portend have generated interest and anxiety within some militaries and defense ministries, and a movement of non-governmental activists seeking to ban fully autonomous weapons. In May 2014, the High Contracting Parties of the UN Convention on Certain Conventional Weapons (CCW) convened an extensive discussion of the legal and ethical issues that autonomous weapons raise, while recognizing that many of these problems lie at an uncertain point in the future.

It is important that normative …

The Power To Threaten War, Matthew C. Waxman

Faculty Scholarship

Existing war powers scholarship focuses overwhelmingly on the President's power to initiate military operations abroad and the extent to which that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats – to coerce or deter enemies and to reassure allies – are one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency's powers to shape …