Secrecy, National Security and the Vindication of Constitutional Law
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Secrecy, National Security and the Vindication of Constitutional Law

Edited by David Cole, Federico Fabbrini and Arianna Vedaschi

Virtually every nation has had to confront tensions between the rule-of-law demands for transparency and accountability and the need for confidentiality with respect to terrorism and national security. This book provides a global and comparative overview of the implications of governmental secrecy in a variety of contexts. Expert contributors from around the world discuss the dilemmas posed by the necessity for – and evils of – secrecy, and assess constitutional mechanisms for checking the abuse of secrecy by national and international institutions in the field of counter-terrorism.
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Chapter 5: Formalism and state secrets

Sudha Setty


The state secrets privilege has received a tremendous amount of scholarly attention in the US in the last decade, initially prompted by the administration of President George W. Bush seeking early dismissals of lawsuits that dealt with allegations of serious constitutional and human rights violations. The administration’s litigation posture was troubling – but the judicial acceptance of these claims, largely based on the judiciary’s own formalistic view of its own role in engaging the executive branch on national security secrecy – allowed the executive branch to make virtually unilateral secrecy determinations that shielded it from civil suits. 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. In the years since the new policy took effect, 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. One high-profile case, that of Binyam Mohamed and other plaintiffs claiming that they had been subject to extraordinary rendition, torture, and prolonged detention, offers evidence of a disturbing trend of US courts retreating to formalistic reasoning to extend unwarranted deference to the executive branch in security-related contexts. In this chapter, I consider the state secrets privilege and place 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.

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