The state secret privilege doctrine in US law and its use in the fight against terrorism:
a protection of national security? a danger for public liberties.
When talking about Human Rights and the United States, many authors would talk of ‘American exceptionalism’. This expression refers to the idea that the United States of America(hereafter US) have a troubled relationship to Human Rights (hereafter HR). On the one hand, they see themselves as having the messianic duty to spread Human Rights in the world, including through international instruments that should be binding on as many countries as possible. On the other hand, they tend to consider that their own rules as regards HR are above international norms. This leads to adouble standard in the application of HR: there are the American people and the others; there are national norms and the others. It is in that context that the state secret privilege doctrine must be read.
To define briefly this doctrine, it is that according to which some information that could endanger national security should not be divulged during a trial, especially in the field of war andforeign affairs.
Before explaining thoroughly the extent of that doctrine, it is necessary to dress a quick catalogue of the different norms that may apply in the right to justice and limitations to it in the US legal system.
First of all, Constitutional norms both protect and limit the Judicial power through the system of checks and balances. The three powers belong to different institutions:the Legislative Power is in the hands of the Congress, the Executive Power is in the hands of the President and the Judiciary is in the hands of judges of the Supreme Court and inferior courts. It is to be noted that “Congressmen and executive and judicial officers shall all be bound by Oath or Affirmation, to support the Constitution”, which sets them all at a level of trust and responsibilitytowards the respect of the Constitution. Those three institutions have powers which can limit each other. For example, the Legislative makes all laws and ratifies treaties; the Executive faithfully executes them, while the Judiciary determines which laws/rules apply to any given case. The Judiciary can also decide that a law is unconstitutional. The Executive power has moreover some specialcompetences since the President is the Commander in Chief of the armed forces and is responsible for foreign affairs. In that domain, the possession and manipulation of information is of capital significance, and that interfere with the right to justice.
Constitutional provisions are also dealing with this right to justice and with the place of international treaties. As regards the right to justice, the5th amendment prescribes that “no one (…) shall be (…) deprived of life, liberty, or property, without due process of law (…)”, while according to the 6th amendment “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury (…) ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with thewitnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”. The same 6th amendment also leaves some place to international norms as it reads “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the UnitedStates, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Thus the US should respect its international engagements as supreme Law of the Land. Some international engagements of the US are of interest while talking about the state secret privilege doctrine and especially in...