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Judicial Formalism and the State Secrets Privilege


Sudha Setty


Western New England University School of Law

2012

William Mitchell Law Review, Vol. 38, p. 1629, 2012
Western New England University School of Law Legal Studies Research Paper No. 12-4

Abstract:     
In the last decade, a disturbing pattern of judicial formalism and unwarranted deference to the executive branch with regard to secrecy claims has emerged in U.S. jurisprudence. The application of the state secrets privilege in the U.S. and English litigation surrounding former Guantanamo detainee Binyam Mohamed illustrates the way in which the United States appears to be moving away from the flexible, rule of law-oriented approach that courts in the United Kingdom and Israel take and is instead echoing the formalistic rigidity that the Indian Supreme Court uses in cases involving state invocations of secrecy. This formalism has resulted in the unnecessary and inappropriate failure of U.S. courts to engage in cases that present credible evidence of gross human rights violations at the hands of the U.S. government.

To remedy this situation, Congress should re-introduce state secrets reform legislation that could infuse the litigation process with procedural and substantive fairness. At the same time, the courts must step away from judicial formalism, already rejected in other national security contexts, and instead heed the lessons of countries like India, the United Kingdom, and Israel with regard to the ramifications of a judiciary unwilling to engage in decision-making on these issues of fundamental civil and human rights.

Number of Pages in PDF File: 27

Keywords: judicial formalism, state secrets privilege, human rights, Binyam Mohamed

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Date posted: March 7, 2012 ; Last revised: July 20, 2012

Suggested Citation

Setty, Sudha, Judicial Formalism and the State Secrets Privilege (2012). William Mitchell Law Review, Vol. 38, p. 1629, 2012; Western New England University School of Law Legal Studies Research Paper No. 12-4. Available at SSRN: http://ssrn.com/abstract=2016987

Contact Information

Sudha Setty (Contact Author)
Western New England University School of Law ( email )
1215 Wilbraham Road
Springfield, MA 01119
United States
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