Litigating Secrets: Comparative Perspectives on the State Secrets Privilege

60 Pages Posted: 17 Apr 2009 Last revised: 28 Dec 2011

Sudha Setty

Western New England University School of Law

Date Written: 2009

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.

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

Suggested Citation

Setty, Sudha, Litigating Secrets: Comparative Perspectives on the State Secrets Privilege (2009). Brooklyn Law Review, Vol. 75, p. 201, 2009. Available at SSRN: https://ssrn.com/abstract=1387085

Sudha Setty (Contact Author)

Western New England University School of Law ( email )

1215 Wilbraham Road
Springfield, MA 01119
United States

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