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At Bloomberg Law, Prof. Claire Finkelstein urges Congress to act to ensure executive privileges are not used to cover up illegal government conduct

March 30, 2022

“Doctrines that enhance executive branch secrecy ultimately damage national security if they interfere with the ability of other federal branches to hold the executive branch to account,” writes Finkelstein.

The following is an excerpt* from “How the State Secrets Doctrine Undermines Democracy,” written by national security expert Claire O. Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy, and published at Bloomberg Law:

A March 3 decision by the U.S. Supreme Court has garnered little public attention, but the significance of the ruling outstrips its notoriety. In United States v. Zubaydah, the court held that the U.S. government could invoke the so-called “state secrets privilege” to bar two former government officials from testifying in a foreign judicial proceeding, despite the fact that most of the testimony they would render was already in the public domain.

The court did so without requiring much in the way of demonstrated need to invoke the privilege by the government. The Zubaydah decision thus struck what may turn out to be a lethal blow against transparency and executive branch accountability.

Black letter law says the government can assert the state secrets privilege and thus withhold evidence in a judicial proceeding, once the court believes the government has made a compelling initial showing of harm to national security from exposure of the evidence. The government frequently will resist the need to make such an initial showing, on the ground that exposure of even preliminary evidence to a judge would defeat the purpose of invoking the privilege in the first place.

The question that arises is how much of a demonstration of harm to national security the government must make in order to claim the privilege… . 

Immediately following the Zubaydah decision, Finkelstein urged the House Judiciary Committee to investigate the torture of Zubaydah and encouraged the government to waive the states secret privilege.

“How can we credibly criticize Putin for committing war crimes in Europe at the same time that we distort the law to cover up our own illegal conduct?,” wrote Finkelstein. “How can we expect American civilians, who are signing up with the Ukrainian military in large numbers, to receive humane treatment if taken prisoner, when we torture our own prisoners and then refuse all mechanisms of accountability?”

As Faculty Director of Penn’s Center for Ethics and the Rule of Law (CERL), Finkelstein, along with a working group comprising a bipartisan group of legal scholars, national security professionals, former military officers, current and former defense attorneys in the commission, and former Guantanamo prosecutors, recently released 13 recommendations for closing Guantanamo Bay.

Finkelstein is also a distinguished research fellow at the Annenberg Public Policy Center and a senior fellow at the Foreign Policy Research Institute (FPRI). Her current research addresses national security law and policy and democratic governance with a focus on related ethical and rule of law issues.

Follow Finkelstein on Twitter @COFinkelstein.

Read “How the State Secrets Doctrine Undermines Democracy” at Bloomberg Law.

* Reproduced with permission. Published March 28, 2022. Copyright 2022 The Bureau of National Affairs, Inc. 800-372-1033. For further use, please visit