Sunday, April 19, 2009
Professor Sudha Setty (Western New England) just posted her enlightening article Litigating Secrets: Comparative Perspectives on the State Secrets Privilege on ssrn; it's also forthcoming in the Brooklyn Law Review. Setty presents a fresh and interesting comparative approach to state secrets; and the piece is especially timely, what with the Obama Justice Department reasserting the Bush administration's position on state secrets in the Ninth Circuit and Congress considering a state secrets overhaul. I highly recommend it.
Setty compares the state secrets privilege in the U.S. with similar privileges in Scotland, England, Israel, and India--"other nations which confront serious national security threats"--and draws two conclusions, both of which have implications for U.S. reform. Setty:
Although the current U.S. use and application of the state secrets privilege is roughly analogous to that of England, [Binyam Mohamed's case in England] suggests that England's current application of the privilege may be more narrow than that of the United States, and that the English court in Mohamed was forced to expand the scope of its own public interest immunity because of the threat of national security repercussions from the United States. The transnational implications of U.S. pressure regarding the state secrets privilege may be that even if other nations' courts use a narrower standard for that privilege, those standards may be undermined if the U.S. government uses its considerable clout to pressure governments to claim state secrets in cases where U.S. government actions are implicated.
U.S. courts are also less deferential to the executive branch than India, but more so than Scotland and Israel. The proposed congressional reforms offer some positive steps to establish procedural safeguards that strike an appropriate balance between national security and the rule of law, government accountability and liberty. However, Congress should consider going further in addressing the need for litigation to compensate those who have suffered gross constitutional and human rights violations at the hands of the government.
How far? Setty argues that reform efforts should consider explicitly accounting for human rights violations:
[R]eforms in the United States should require courts to consider potential human rights abuses in determining whether a lawsuit should go forward . . . . It would be appropriate for U.S. judges--like their Israeli counterparts--to undertake a balancing test which accounts for the nature of the claim when deciding whether a case ought to go forward at the discovery stage. After all, the cases of El-Masri, Al-Haramain and Mohamed, and the violations of human rights and constitutional safeguards that they represent are at the heart of the impetus for reforming the privilege.
And reforms should deal with both state secrets and justiciability:
It would be appropriate and useful for Congress to assist in the clarification between the state secrets privilege and [Totten v. Doe's] standard of dismissal based on the subject matter of the litigation.
Such clarification should be undertaken simultaneously with state secrets reform because it would close a potential avenue for the executive branch to avoid disclosure of evidence.
This is an interesting, important, and timely piece for anyone following developments in the state secrets privilege or separation-of-powers issues in the struggle against terrorism. I highly recommend it.