Hooded: Binyam Mohamed and the State Secrets Privilege

Abstract

The use of the state secrets doctrine in cases involving enemy combatants ought to be subjected to further review in order to ensure that it is not utilized in a way that protects the U.S. government from allegations of wrongdoing. R. (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs sheds light on the problems associated with the doctrine’s use in its analysis of the validity of disclosure of evidence pertaining to an individual detained as an enemy combatant. The reasoning by the English Court of Appeal suggests that there was no real threat to either U.S. or English intelligence or military secrets in disclosing the relevant documents, and that the doctrine was employed in error. This Comment suggests that the use of the state secrets doctrine and the control principle in this case serves to deny democratic accountability by violating an individual’s right of access to the court.