Formalism and State Secrets

Abstract

The state secrets privilege has received a tremendous amount of scholarly attention in the U.S. in the last decade. In September 2009, the Obama administration created a new policy that mandated a more rigorous internal administrative review prior to invoking the state secrets privilege. It appears as though this internal review process has resulted in little difference with regard to the invocation of the privilege at the pleadings stage in cases that allege torture and other human rights abuses.

This chapter of the forthcoming comparative law volume "Secrecy, National Security and the Vindication of Constitutional Law" (David Cole, Federico Fabbrini & Arianna Vedaschi, eds.), considers the state secrets privilege and places the formalist decision-making of the Mohamed court in juxtaposition with other nations’ jurisprudence – including the English courts that dealt with a separate lawsuit brought by Mohamed there. The Author concludes that given the Obama administration’s aggressive invocation of the state secrets privilege and the judiciary’s unwillingness to defend the ability of individuals to litigate their basic human and civil rights, the United States Congress must re-introduce state secrets reform legislation that infuses the litigation process with procedural and substantive fairness. Additionally, courts must step away from judicial formalism and instead take on the complex and difficult task of providing a venue for government accountability.

Keywords: national security, state secrets privilege, formalism, Binyam Mohamed, human rights