Litigating Secrets: Comparative Perspectives on the State Secrets Privilege

Abstract:     
The Article considers the history and use of the state secrets privilege in the United States and the ongoing congressional efforts to reform the use of the privilege. Although numerous articles have addressed the application of the state secrets privilege in the United States, this Article breaks new ground by examining the history and use of the privilege in other nations which confront serious national security threats. This Article considers the modern application the privilege in Scotland, England, Israel and India - an analysis which contextualizes both the current use of the U.S. privilege and the efforts at legislative reform. Such comparative analysis is necessary to fully understand the transnational implications of the U.S. application of the state secrets privilege, which have recently come to light in litigation involving both the United States and England.

This Article concludes that domestic reform efforts continue to be necessary to achieve an appropriate application of the privilege which balances national security with the need to preserve the rule of law, individual rights, liberty interests and government accountability. The Article further suggests that reforms should explicitly account for alleged human rights abuses by the government in determining whether a claim of privilege should be upheld.

Number of Pages in PDF File: 60

Keywords: state secrets, executive power, justiciability, comparative law, human rights

Accepted Paper Series