State Secrets, Open Justice, and the Criss-Crossing Evolution of Privilege in the United States and the United Kingdom

Abstract

This essay argues that the state secrets privilege in the United States and the corresponding public interest immunity in the United Kingdom have evolved in exactly the opposite direction. Thus in the United States, the state secrets privilege has evolved from a common law privilege that allowed for meaningful judicial review to a potentially sweeping constitutional privilege that crowds out any consideration of the plaintiff's interest in access. But in the United Kingdom, public interest immunity evolved from a robust immunity with no meaningful judicial review to a much weaker immunity with significant judicial oversight and consideration of the plaintiff's interest in access to justice.

This essay compares the contemporary applications of the two privileges directly, by examining how courts treated the privileges in two very similar cases – Binyam Mohamed's case in both countries arising out of his extraordinary rendition and torture.

Keywords: state, secrets, privilege, public, interest, immunity