Judicial Formalism and the State Secrets Privilege

27 Pages Posted: 7 Mar 2012 Last revised: 20 Jul 2012

See all articles by Sudha Setty

Sudha Setty

Western New England University School of Law

Date Written: 2012


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.

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

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: https://ssrn.com/abstract=2016987

Sudha Setty (Contact Author)

Western New England University School of Law ( email )

1215 Wilbraham Road
Springfield, MA 01119
United States

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