Litigating Secrets: Comparative Perspectives on the State Secrets Privilege

The state secrets privilege is a common law evidentiary privilege, which enables the government to prevent disclosure of sensitive state secrets in the course of litigation. The privilege has never been clarified by statute. Congress undertook reform efforts in 2008 out of concerns that the Bush administration overreached in its claims of privilege by seeking more dismissals during the pleadings stage, and that courts have not used a uniform standard to assess those claims. This Article considers the modern application of the privilege in Scotland, England, Israel, and India—an analysis that 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 that have recently come to light in litigation involving both the United States and England