The State Secrets Privilege: From Evidentiary Privilege to Executive Immunity in the United States

In recent years, a number of controversial programs initiated by the United States administration under the auspices of its post-9/11 “war on terrorism” have come to light. These include the program to transfer detainees taken into custody by American forces to third countries, where the detainees were exposed to brutal and invasive forms of interrogation. Attempts to question the legality of such executive steps in the courts have encountered several hurdles, which in practice have prevented further legal proceedings and adjudication. One of the more prominent of these hurdles is the state secrets privilege recognized in the United States legal system.