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58-84 (Article)

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HUMAN RIGHTS QUARTERLY

Uncloaking Secrecy:
International Human Rights Law in
Terrorism Cases

Jeffrey Davis*

Abstract
When those swept up in counterterrorism operations try to hold govern-
ments accountable for rights violations, legal secrecy doctrines such as the
“state secrets privilege” and “public interest immunity” frequently derail
their efforts. This article shows the effects of legal secrecy doctrines on ef-
forts to hold officials accountable for rights violations in counterterrorism
cases. It sets out the limits imposed by international human rights law on
these secrecy doctrines, and it explores how these limits are handled in US
and British courts. Finally, it sets out requirements in order for legal secrecy
practices to comply with international human rights law.

I. Introduction—The Binyam Mohamed Case

On 10 April 2002, Binyam Mohamed was arrested in Karachi, Pakistan while

trying to return to the UK—his legal residence. Pakistani officials quickly
turned Mohamed over to agents of the US Federal Bureau of Investigation
(FBI) and Central Intelligence Agency (CIA), who interrogated Mohamed in
Pakistan for four months without giving him access to a lawyer. They then

* Jeffrey Davis is a Professor in the Political Science Department at the University of Maryland,
Baltimore County (UMBC). He has taught human rights law, international law, national se-
curity law and comparative law for more than ten years, winning several teaching awards.
He is the author of Seeking Human Rights Justice in Latin America (Cambridge University
Press 2014) and Justice across Borders: The Struggle for Human Rights in U.S. Courts (Cam-
bridge University Press 2008). Professor Davis has also published articles on human rights
accountability, the inter-American human rights system, and judicial decision making in
several journals.

Human Rights Quarterly 38 (2016) 58–84 © 2016 by Johns Hopkins University Press
2016 International Human Rights Law in Terrorism Cases 59

“blindfolded him, strapped him to the seat of a plane, and flew him to
Rabat, Morocco.”1 For a year and a half, “Mohamed was secretly detained,
interrogated, and tortured by agents of the Moroccan intelligence services.”2
Then on 21 January 2004, CIA agents flew him to a “secret US detention
facility known as the “Dark Prison,” in Kabul, Afghanistan.”3 (See Figure 1
for the flight logs of the private aircraft that transported Mohamed and El-
Masri, discussed below).4

Figure 1. Flight Logs of the Private Aircraft that Transported Mohamed and
El-Masri

After enduring “several more months of detention, interrogation, and

torture by U.S. intelligence agents,” CIA officials transferred Mohamed to
Guantanamo Bay, Cuba, in September 2004.5 Mohamed alleges that Moroc-
can officials tortured him by “routinely beating him and breaking his bones

1. Mohamed v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128, 1130 (N.D.Cal. 2008).
2. Id.
3. Id.
4. Council of Europe, Committee on Legal Affairs and Human Rights, Rapporteur: Dick
Marty, Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe
Member States: Second Report, Doc. 11302 rev., (11 June 2007), Appendix, available at
http://assembly.coe.int/CommitteeDocs/2006/20060614_Ejdoc162006PartII-APPENDIX.
pdf.
5. Mohamed v. Jeppesen, 539 F. Supp. at 1130 (N.D.Cal. 2008).
60 HUMAN RIGHTS QUARTERLY Vol. 38

. . . cut[ting] him with a scalpel all over his body, including on his penis,
and pour[ing] ‘hot stinging liquid’ into the open wounds.”6 While in US
custody “he was kept in ‘near permanent darkness’ and subjected to loud
noise, such as the recorded screams of women and children, 24 hours a
day. Mohamed was fed sparingly and irregularly and in four months he lost
between 40 and 60 pounds.”7
In 2005, a US military commission charged Mohamed with conspiracy,
arguing Al Qaeda trained him to detonate radioactive dirty bombs in the
United States. Military prosecutors told the commission that Mohamed had
confessed. However, Mohamed countered that interrogators had tortured him
into giving his statement. To prove his claims, he sought documents from the
UK. British security officials had questioned him while he was imprisoned in
Afghanistan, and Mohamed had cooperated with these officials throughout
his imprisonment there. Mohamed believed British records would conclu-
sively show that he had been tortured. The government refused, claiming
the documents should not be disclosed under the public interest immunity
doctrine. Mohamed litigated the issue in British courts.8

II. Challenging Secrecy—Research Questions

Eventually, after nearly four more years of delay, the US released Mohamed,
and he returned home to the United Kingdom on 23 February 2009.9 He
had been imprisoned for nearly seven years.10 Binyam Mohamed’s litigation
in the United Kingdom and United States demonstrates the tension between
national security interests and international law, as well as the transnational
nature of counterterrorism operations and accountability efforts. Because
governments have an interest in keeping clandestine elements of their
national security actions secret, domestic courts in most nations recognize
the right of governments to refuse to disclose evidence on national security
grounds. A variety of legal doctrines exist to preserve secrecy. The state
secrets privilege allows the US Executive Branch to withhold evidence in
civil cases or even demand dismissal of those cases based on the claim
that disclosure would damage national security. In the United Kingdom,
the public interest immunity doctrine and closed material procedures serve
similar but more limited functions. The danger, of course, is that states use

6. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1074 (9th Cir. 2010).
7. Id.
8. Mohamed, R (on the application of) v. Secretary of State for Foreign & Commonwealth
Affairs, (Rev 31-07-2009) [2008] EWHC 2048 (Admin) (21 Aug. 2008), ¶ 2.
9. Laura K. Mehalko, Hooded: Binyam Mohamed and the State Secrets Privilege, 34 B.C.
Int’l. & Comp. L. Rev. 81, 83 (2011).
10. Id.
2016 International Human Rights Law in Terrorism Cases 61

these secrecy doctrines to establish impunity for human rights violations,

criminal behavior, corruption, or incompetence.
When states are dealing with terrorism, these tensions are inflamed as
the threat to national security is often clandestine, civilian, and internal.
Governments employ secrecy doctrines to refuse producing certain evidence
when they prosecute accused terrorists, and when those accused sue gov-
ernments for legal violations committed in counterterrorism operations. In
this article, focus is placed on suits by those swept up in counterterrorism
operations against governments. The use of secrecy in prosecutions causes
similar, but separate legal controversies that are addressed in another article.11
The following questions are addressed here:
1. How has secrecy influenced efforts to hold government officials accountable
for international law violations committed in counterterrorism operations?

2. What rules of international human rights law control the use of secrecy
doctrines in cases against government officials for counterterrorism abuses?

3. How do these rules influence the use of secrecy doctrines domestically in

the United States and the United Kingdom?

4. How must current secrecy practices in the United States and other nations
change in order to be consistent with international law?

III. Mohamed’s Suit for Documents in the United Kingdom

To prove Mohamed’s confession was coerced from torture, he sought proof

of his maltreatment through British documents. During the proceeding before
the British High Court, the Foreign Secretary acknowledged possession of
documents that “could be considered exculpatory or might otherwise be
relevant in the context of proceedings before the Military Commissions.”12
However, the Foreign Secretary argued that he was “under no duty to disclose
the documents or the information contained in them and to do so would in
any event cause significant damage to [the] national security of the United
Kingdom.”13 After issuing its first ruling in the case, the High Court revised
its opinion when the government admitted it possessed additional docu-
ments further detailing British knowledge regarding Mohamed’s detention
and interrogation.14 In the new opinion, the Court added new language,

11. Jeffrey Davis, Equality of Arms: Complying with International Human Rights Law in
Cases Against Alleged Terrorists, forthcoming in 21(1) J. Conflict Sec. L. (2016).
12. Mohamed, R (on the application of) v. Secretary of State for Foreign & Commonwealth
Affairs, (Rev 31-07-2009) [2008] EWHC 2048 (Admin) (21 Aug. 2008), ¶¶ 3, 47.
13. Id.
14. Id. ¶ 30-32.
62 HUMAN RIGHTS QUARTERLY Vol. 38

in bold type, to demonstrate what the new evidence added to the case.
This situation demonstrates the difficulty of obtaining information from
state security services as well as the importance of judicial supervision. For
example, Figure 2 shows an excerpt from the opinion. In the original ver-
sion, the government claimed that it had no reports from the United States
regarding Mohamed’s interrogation after February 2003, and that there was
a “total absence of information” on where Mohamed was held from May
2002 through May 2004.15 The revised text demonstrated that the United
Kingdom had received additional communication from US officials, and
that it was aware that Mohamed had been moved to a covert location.16

Figure 2.

Even though the High Court found that Mohamed had made an “arguable
case” regarding claims that he was subjected to torture, cruelty, inhuman
or degrading treatment; that he was unlawfully transferred between secret
prisons; and that he had been held in “unlawful incommunicado detention,”
the High Court stayed its order to produce the documents until the Foreign
Secretary decided whether to invoke public interest immunity.17 Further,
the Court redacted several paragraphs of its decision to protect classified
information.18
Shortly after the High Court’s ruling, the Foreign Secretary issued his
Public Interest Certificate opposing the release of the documents and the
publication of the redacted paragraphs.19 He stated, “the national security
of the United Kingdom and prevention of harm to the international relations
of the United Kingdom . . . dictated that the information in question should

15. Id. ¶ 31.

16. Id. ¶ 149.
17. Id. ¶¶ 147, 149.
18. Id. ¶ 4.
19. Mohamed, R (on the application of) v. Secretary of State for Foreign & Commonwealth
Affairs [2008] EWHC 2100 (Admin) (29 Aug. 2008), ¶ 5.
2016 International Human Rights Law in Terrorism Cases 63

not be disclosed into the public domain.”20 The Foreign Secretary’s argument
was based in part on threats made by the United States that releasing the
documents would force it to reconsider its intelligence sharing arrangement
with the United Kingdom.21
While the High Court was holding hearings on the public interest im-
munity argument and reviewing the documents in question, US Federal
Court Judge Emmet Sullivan heard Mohamed’s habeas corpus petition. He
requested the US government to produce evidence to support charges against
Mohamed, as well as to produce any exculpatory evidence. The government
reluctantly turned over forty-two documents; however, these documents were
heavily redacted.22 Upon hearing of these developments, the British High
Court concluded that the US habeas proceedings had provided Mohamed
with nearly every remedy he was seeking before British courts. Only the
question of redacted paragraphs from the Court’s first judgment remained.
It acknowledged “that the requirements of open justice, the rule of law and
democratic accountability demonstrate the very considerable public interest
in making the redacted paragraphs public, particularly given the constitutional
importance of the prohibition against torture.”23 After initially holding that
the balance weighed more heavily in favor of the national security concerns
and refusing disclosure, the High Court finally ordered the publication of
the paragraphs. It concluded that newly inaugurated President Obama was
less likely to end the intelligence sharing arrangement between the two
nations as a result of disclosure, and therefore, the risk to national security
had been reduced.24
The British Court of Appeal then dismissed the Foreign Secretary’s ap-
peal. It held that the reasons for disclosure were compelling and “publica-
tion of the redacted paragraphs would not reveal information which would
be of interest to a terrorist or criminal or provide any potential material of
value to a terrorist or a criminal.”25 The seven redacted paragraphs revealed
British security officials were notified that a “new series of interviews was
conducted by the United States authorities prior to 17 May 2002 as part of
a new strategy designed by an expert interviewer.”26 Furthermore, during
these interviews “[Mohamed] had been intentionally subjected to continuous
sleep deprivation.”27 British officials received reports “that combined with

20. Id. ¶ 5.
21. Id. ¶ 2.
22. Mohamed, R (on the application of) v. Secretary of State for Foreign & Commonwealth
Affairs [2009] EWHC 152 (Admin) (04 Feb. 2009), ¶¶ 5, 7.
23. Id. ¶ 54.
24. Mohamed, R (on the application of) v. Secretary of State for Foreign & Commonwealth
Affairs (Rev 1) [2009] EWHC 2549 (Admin) (16 Oct. 2009).
25. Mohamed, R (on the application of) v. Secretary of State for Foreign & Commonwealth
Affairs [2010] EWCA Civ 65 (10 Feb. 2010), ¶ 52.
26. Id. Appendix.
27. Id.
64 HUMAN RIGHTS QUARTERLY Vol. 38

the sleep deprivation, threats and inducements were made to him [and that]
his fears of being removed from United States custody and ‘disappearing’
were played upon.”28
Mohamed’s case demonstrates that not only are counterterrorism op-
erations transnational, but so too are efforts to keep information secret. As
Sudah Setty points out,
The transnational implications of U.S. pressure regarding the state secrets privi-
lege may be that even if other nations’ courts use a narrower standard for the
privilege, those standards may be undermined if the U.S. government uses its
considerable clout to pressure governments to claim state secrets in cases where
U.S. government actions are implicated.29

As security operations and attempts to keep evidence secret becomes

more transnational, so do efforts to hold officials accountable. Advocates
use various national and even regional courts to expose alleged abuses in
counterterrorism operations. The case also shows the varying influence of
international law. In US courts, judges did not cite international law—not
even once—in the several rulings in Mohamed’s case. On the other hand,
British courts frequently relied on decisions of the European Court of Hu-
man Rights (ECHR) when analyzing the legal issues it resolved in these
cases (discussed further below). Finally, the case demonstrates the differing
approaches to secrecy in court and the dangers that arise when courts are
too eager to endorse government claims of secrecy.

IV. Secrecy Doctrines in Efforts to Hold Governments

Accountable for Abuses in Terrorism Cases

On 1 August 2007, Mohamed and four others filed suit against Jeppesen
Dataplan for forced disappearance; torture; and cruel, inhuman, or degrading
treatment.30 They filed their claim under the Alien Tort Statute, a two-hundred
year old law that allows aliens to file civil suits for violations of international
law.31 The plaintiffs’ complaint alleged that the defendant, Jeppesen Dataplan,
provided air transportation and logistics for the CIA’s extraordinary rendition
program, with actual or constructive knowledge that it was transporting de-
tainees who would be tortured or forcibly disappeared. The plaintiffs pointed
to an interview in which a Jeppesen employee admitted, “We do all of the

28. Id.
29. Sudha Setty, Litigating Secrets: Comparative Perspectives on the State Secrets Privilege,
75 Brooklyn L. Rev. 201, 255 (2009).
30. Mohamed v. Jeppesen, 539 F. Supp. 2d at 1130–31 (N.D.Cal. 2008).
31. See Jeffrey Davis, Justice Across Borders: The Struggle for Human Rights in U.S. Courts (2008);
the law’s application has been altered recently by the US Supreme Court in Kiobel v.
Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
2016 International Human Rights Law in Terrorism Cases 65

extraordinary rendition flights—you know, the torture flights. Let’s face it,
some of these flights end up that way.”32
The US government immediately intervened and moved to dismiss the
plaintiffs’ complaint under the state secrets privilege. In support of the motion,
the CIA’s Director submitted a classified declaration and a redacted unclas-
sified declaration. He argued, “[d]isclosure of the information covered by
this privilege assertion reasonably could be expected to cause serious—and
in some instances, exceptionally grave—damage to the national security of
the United States and, therefore, the information should be excluded from
any use in this case.”33
The US state secrets doctrine is often more broadly applied than simi-
lar doctrines in other democracies. Judges may permanently dismiss entire
cases if they accept the government’s assertion of the privilege often without
reviewing the evidence in question. Typically in public interest immunity
cases, the secret evidence in question is merely excluded, and even then
only after extensive review by the trial judge. In the Jeppesen case, the US
district court dismissed the case ruling, “at the core of Plaintiffs’ case . . .
are ‘allegations’ of covert US military or CIA operations in foreign countries
against foreign nationals—clearly a subject matter which is a state secret.”34 In
a six to five decision the Ninth Circuit Court of Appeals en banc endorsed the
dismissal of the case.35 Neither court reviewed the allegedly secret evidence.
Blocking litigation due to state secrets originates in a US Civil War case,
Totten v. U.S,36 In Totten, the family of a spy sued the United States for pay-
ments they claimed the government promised in exchange for spying. The
Court threw out the case because it would “inevitably lead to the disclosure
of matters which the law itself regards as confidential.”37 The Supreme Court
ruled that cases could be barred if “the very subject matter of the action
. . . [was] a matter of state secret.”38
In 1953, the Supreme Court recognized the modern states secrets privi-
lege, which allowed the government to prevent the production or introduc-
tion of evidence because it was a state secret.39 While the privilege itself
does not require dismissal, it can if the case cannot possibly be sustained
without the privileged evidence. The Supreme Court ruled that courts need
not require the government to produce the evidence in camera (before the
judge alone) so that he or she may determine if the privilege is warranted.

32. Jane Mayer, The C.I.A.’s Travel Agent, New Yorker, 30 Oct. 2006; Mohamed v. Jeppesen,
539 F. Supp. 2d 1128 (2008), Plaintiffs Complaint, at 16.
33. Mohamed v. Jeppesen, 614 F.3d at 1076 (9th Cir. 2010).
34. Id. at 1076–77.
35. Id. at 1070.
36. Totten v. United States, 92 U.S. 105 (1875).
37. Id. at 107.
38. United States v. Reynolds, 345 U.S. 1, 11 n.26 (1953).
39. Id.
66 HUMAN RIGHTS QUARTERLY Vol. 38

Despite not being able to see the evidence, the court “must make an inde-
pendent determination whether the information is privileged.”40 The Court
of Appeals in Jeppesen dismissed the case because “there is a reasonable
danger that compulsion of the evidence will expose . . . matters which, in
the interest of national security, should not be divulged.”41 The six judges
in the majority held, “we have independently and critically confirmed that
their disclosure could be expected to cause significant harm to national
security.”42 In reaching this conclusion, despite acknowledging “hundreds
of pages of publicly available documents” supporting the plaintiffs’ case, the
court rejected the contention that “the existence of the extraordinary rendi-
tion program is itself a state secret.”43 The majority reasoned, “claims and
possible defenses are so infused with state secrets that the risk of disclosing
them is both apparent and inevitable.”44
This case is an excellent example of the sweeping scope of the US secrecy
doctrine. The way US courts handle the state secrets privilege increases the
likelihood the doctrine will be abused. They impose a near complete lack
of scrutiny and transparency while endorsing government secrecy claims.
As the Ninth Circuit Court of Appeals in Jeppesen acknowledged, “we are
necessarily precluded from explaining precisely why this case cannot be
litigated without risking disclosure of state secrets, or the nature of the
harm to national security that we are convinced would result from further
litigation.”45 The majority claimed it had a “special burden to assure itself
that an appropriate balance is struck between protecting national security
matters and preserving an open court system.”46 Despite the fact that the
court claimed to assess the privilege claim with a “very careful, indeed a
skeptical, eye,” it did so without any review of the alleged secret material
and gave full deference to the executive branch. By definition, full defer-
ence is neither careful nor skeptical. The court argued, “too much judicial
inquiry into the claim of privilege would force disclosure of the thing the
privilege was meant to protect.”47
The dissenting judges in Jeppesen argued that the state secrets privilege
can only be used to prohibit the introduction of specific secret evidence; not
to dismiss cases before any answer has been filed or evidence requested.48
Writing for the dissent, Judge Hawkins argued, “dismissal is justified if and
only if specific privileged evidence is itself indispensable to establishing
either the truth of the plaintiffs’ allegations or a valid defense that would

40. Mohamed v. Jeppesen, 614 F.3d at 1081 (9th Cir. 2010).

41. Id. (quoting United States v. Reynolds, 345 U.S. 1, 10 (1953).
42. Id. at 1086.
43. Id. at 1089–90.
44. Id. at 1089.
45. Id.
46. Id. at 1081.
47. Id. at 1082, quoting Reynolds, at 8.
48. Id. at 1093.
2016 International Human Rights Law in Terrorism Cases 67

otherwise be available to the defendant.”49 This analysis is crucial because

it “confin[es] the operation of the state secrets doctrine so that it will sweep
no more broadly than clearly necessary.”50 After all the doctrine is “so dan-
gerous as a means of hiding governmental misbehavior under the guise of
national security, and so violative of common rights to due process.”51 It
was inappropriate for the majority to prematurely dismiss the case without
Jeppesen’s answer because it was impossible to know his defenses and
whether they would require state secrets to prove.

V. El-Masri v. U.S.

Khalid El-Masri, a German citizen, filed a civil claim against the former
Director of the CIA and three private aviation companies for torture and
unlawful imprisonment as a result of his extraordinary rendition.52 According
to El-Masri, he was arrested in Macedonia and turned over to CIA opera-
tives who beat him, sodomized him with a foreign object, and interrogated
him.53 El-Masri claimed he was drugged and flown on a private jet to a
location he later determined to be Kabul, Afghanistan.54 (See Figure 3, the
flight logs for the flight transporting El-Masri to Kabul).55 He alleged he was
imprisoned in a secret CIA prison called the “Salt Pit” where he was beaten
and otherwise mistreated.56 On 28 May 2004, after more than four months,
officials flew El-Masri to Albania where he was released on an abandoned
road. No charges were ever filed against him.57
Once again, government lawyers successfully convinced the court to
dismiss the case using the state secrets privilege. Based in part on a classified
submission from the US Executive Branch, District Court Judge Ellis ruled,
“there is no doubt that the state secrets privilege is validly asserted here.”58
The court, once again, did not reveal the contents of the classified submission,
but merely explained that it was sufficient that “El-Masri’s publicly available
complaint alleges a clandestine intelligence program, and the means and
methods the foreign intelligence services of this and other countries used
to carry out the program.”59

49. Id. at 1093.

50. Id. at 1093–94.
51. Id. at 1094.
52. Khaled El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D.VA 2006).
53. Id. at 532–33.
54. Id. at 533.
55. American Civil Liberties Union, El-Masri v. Tenet, available at https://www.aclu.org/files/
pdfs/safefree/airplane_callsigns20040122.pdf.
56. Id.
57. Id. at 534.
58. Id. at 537.
59. Id. at 537.
68 HUMAN RIGHTS QUARTERLY Vol. 38

Figure 3. Flight Logs for the Flight Transporting El-Masri to Kabul

The court ruled that the case must be dismissed even though “‘dismissal
is appropriate only when no amount of effort and care on the part of the
court and the parties will safeguard privileged material.’”60 No steps could

60. Id. at 538, quoting Sterling v. Tenet, 416 F.3d 338, 348 (4th Cir. 2005).
2016 International Human Rights Law in Terrorism Cases 69

be taken to protect the secret material, Judge Ellis held, because “‘the very
subject of the litigation is itself a state secret.’”61 The Fourth Circuit Court of
Appeals affirmed the decision, and on 9 October 2007, the Supreme Court
denied certiorari.62 Both Jeppesen and El-Masri demonstrate the difficulty
advocates encounter when confronted with secrecy doctrines in domestic
courts. However, these advocates did not stop in domestic courts.

VI. Regional Human Rights Courts Challenge Secrecy

Doctrines

A. The Inter-American Court of Human Rights

On 11 September 1990, during Guatemala’s brutal counterinsurgency cam-

paign, police assassinated Myrna Mack Chang, an anthropologist studying
the displacement of thousands of indigenous Guatemalans.63 Government
officials used every weapon at their disposals to block the investigation of
Mack’s murder. When prosecutors and human rights advocates demanded
documents related to the killing, the government claimed disclosure would
damage national security.
After successfully blocking the legal process in Guatemala for more
than ten years, the case reached the Inter-American Court for Human Rights
(IACtHR). The IACtHR ruled that using national security secrecy doctrines in
cases like that of Myrna Mack violated the American Convention for Human
Rights. It held: “in the case of human rights violations, the State authorities
cannot resort to mechanisms such as official secret or confidentiality of the
information, or reasons of public interest or national security, to refuse to
supply the information required by the judicial or administrative authorities.”64
The IACtHR explained, “especially when it involves the investigation and
prosecution of illegal actions attributable to the security forces of the State,
there is a possible conflict of interests between the need to protect official
secret, on the one hand, and the obligations of the State to protect individual
persons from the illegal acts committed by their public agents . . . on the
other hand.”65 Government officials “cannot shield themselves behind the

61. Id.
62. El-Masri v. Tenet, 79 F.3d 296 (4th Cir. 2007), cert. denied in El-Masri v. U.S., 007 U.S.
LEXIS 11351 (2007).
63. Myrna Mack Chang v. Guatemala, Inter-Am. Ct. H.R. (Ser. C) No. 101 (25 Nov. 2003),
¶ 2.
64 Id. ¶¶ 180–81 (reaffirmed in La Cantuta v. Peru, Inter-Am Ct. H.R. Series C No. 162 (29
Nov. 2006), ¶ 111); see also Judicial Guarantees in States of Emergency, (arts. 27(2), 25,
8 of the American Convention on Human Rights), Inter-Am. Ct. H.R. Advisory Opinion
OC-9/87, (Ser. A) No. 9 (1987). (6 Oct. 1987), ¶ 24; Blake v. Guatemala (Reparations),
Inter-Am. Ct. H.R. (Ser. C) No. 48 (1999) (22 Jan. 1999), ¶ 63.
65. Id. ¶ 181.
70 HUMAN RIGHTS QUARTERLY Vol. 38

protective cloak of official secret to avoid or obstruct the investigation of

illegal acts,” the IACtHR ruled.66 This is especially true “[i]n cases of human
rights violations, when the judicial bodies are attempting to elucidate the
facts and to try and punish those responsible for said violations.”67
The IACtHR also explained that allowing officials in the branch of gov-
ernment being investigated to declare information secret violated enforce-
ment of judicial protection as well as the right to an investigation.68 When
government officials are suspected of rights violations, the IACtHR reasoned,
“the decision to define the information as secret and to refuse to submit it
can never depend exclusively on a State body whose members are deemed
responsible for committing the illegal act.”69 States may protect official se-
crets under this ruling, but doing so “must be subject to control by other
branches of the State or by a body that ensures respect for the principle of
the division or powers.”70
In 1987, the IACtHR delivered an advisory opinion in which it held
that states could not evade the right to an effective remedy in times of
emergency. Failing to provide an effective remedy “is itself a violation of
the Convention.” It explained, “[a] remedy which proves illusory . . in the
particular circumstances of a given case, cannot be considered effective.”71
States violate this provision when “the Judicial Power lacks the necessary
independence to render impartial decisions or the means to carry out its
judgments; or in any other situation that constitutes a denial of justice, as
when there is an unjustified delay in the decision; or when, for any reason,
the alleged victim is denied access to a judicial remedy.”72
The IACtHR recognized the right to truth grounded in rights articulated
in the American Convention. When states assert national security secrecy
doctrines, they can violate the right to truth. In Velasquez v. Honduras, the
IACtHR held: “States must prevent, investigate and punish any violation of
the rights recognized by the Convention.”73 The IACtHR explained that the
right to an investigation and truth emanates from the obligation to protect
its people from rights violations and the right to judicial protection.74
The IACtHR found that domestic law could not circumvent the right to
truth. Peru passed an amnesty law that prohibited civil and criminal cases

66. Id.
67. Id.
68. Id.
69. Id.
70. Id. ¶¶ 180–81.
71. Judicial Guarantees in States of Emergency, supra note 64.
72. Id.
73. Case of Velásquez-Rodríguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4 (29 July
1988), ¶ 166; see also Blake v. Guatemala (Reparations), Inter-Am. Ct. H.R. (Ser. C)
No. 48 (1999) (22 Jan. 1999), ¶ 63.
74. Id. ¶ 176.
2016 International Human Rights Law in Terrorism Cases 71

arising during the counterinsurgency. In the Barrios Altos case, where survi-
vors accused Peru of rights violations stemming from a massacre committed
during Peru’s counterinsurgency, the IACtHR held, “all amnesty provisions
. . . designed to eliminate responsibility are inadmissible, because they are
intended to prevent the investigation and punishment of those responsible for
serious human rights violations.”75 The IACtHR enforced the right to truth by
holding that Peru’s amnesty law was void because through it “the surviving
victims, their next of kin and the next of kin of the victims who died were
prevented from knowing the truth about the events that occurred in Barrios
Altos.”76 This reasoning applies to state secrets and other national security
doctrines. They violate the Convention if they are applied to deny victims,
their families, or even society the truth about grave human rights violations.
In this line of cases, the IACtHR also established the burden of proof for
petitioners in cases where states control the evidence and refuse to reveal it.
Like many counterinsurgency or counterterrorism operations, secrecy is an
essential component of forced disappearances. “[T]he policy of disappear-
ances,” the IACtHR explained, “is designed to conceal and destroy evidence
of disappearances.”77 In these instances, “the disappearance of a particular
individual may be proved through circumstantial or indirect evidence or by
logical inference.”78 The IACtHR ruled that, “in proceedings to determine
human rights violations the State cannot rely on the defense that the com-
plainant has failed to present evidence when it cannot be obtained without
the State’s cooperation.”79 This ruling applies to the use of secrecy doctrines
in counterterrorism cases. Similar to disappearance cases, the state has
exclusive control over the evidence of any abuses that may have occurred.
This ruling placed the burden on state officials to reveal the evidence in their
control, or face international culpability based on circumstantial evidence.
When US courts dismissed human rights cases based on the state secrets
privilege, it clearly violated the rights to judicial protection, investigations,
and the truth. Binyam Mohamed and Khalid El-Masri have filed complaints
in the Inter-American human rights system.80 While the United States in not
subject to the jurisdiction of the IACtHR, the Inter-American Commission
may rule on the illegality of US state secrets jurisprudence.

75. Case of Barrios Altos v. Peru, Inter-Am. Ct. H.R. (Ser. C) No. 87. (2001), ¶ 41.
76. Id. ¶ 47.
77. Velásquez-Rodríguez, supra note 73, ¶ 124.
78. Id.
79. Id. ¶ 138.
80. El-Masri v. The Former Republic of Macedonia, Eur. Ct. H.R., App. No 39630/09 (2012).
72 HUMAN RIGHTS QUARTERLY Vol. 38

B. El-Masri v. Macedonia in the ECHR

The ECHR considered El-Masri’s case when he filed a claim against Mace-
donia for its role in facilitating his extraordinary rendition.81 It ruled that
states may not refuse to adjudicate responsibility for torture.82 “Otherwise,”
the court pointed out, “the general legal prohibition of torture and inhuman
and degrading treatment and punishment would, despite its fundamental
importance, be ineffective in practice and it would be possible in some
cases for agents of the State to abuse the rights of those within their control
with virtual impunity.”83 The court was emphatic that “[a]ny deficiency in
the investigation which undermines its ability to establish the cause of in-
juries or the identity of the persons responsible will risk falling foul of this
standard.”84 It would be insufficient for the government to conduct a strictly
internal investigation, as “the victim should be able to participate effectively
in the investigation in one form or another.”85
With regard to “the right to the truth,” the ECHR “underline[d] the great
importance of the present case not only for the applicant and his family,
but also for other victims of similar crimes and the general public, who had
the right to know what had happened.”86 It explained, “[t]he issue of ‘ex-
traordinary rendition’ attracted worldwide attention and triggered inquiries
by many international and intergovernmental organizations, including the
United Nations human rights bodies, the Council of Europe and the Euro-
pean Parliament.”87 “[S]ome of the States concerned,” the court pointed out,
“were not interested in seeing the truth come out.”88 It acknowledged, “The
concept of ‘State secrets’ has often been invoked to obstruct the search for
the truth.”89 The ECHR did “not underestimate the undeniable complexity of
the circumstances surrounding the present case.” However, it emphasized,
“while there may be obstacles or difficulties which prevent[ed] progress
in an investigation in a particular situation, an adequate response by the
authorities in investigating allegations of serious human rights violations, as
in the present case, may generally be regarded as essential in maintaining
public confidence in their adherence to the rule of law and in preventing
any appearance of collusion in or tolerance of unlawful acts.”90

81. Id.
82. Id.
83. Id. ¶ 182.
84. Id. ¶ 183.
85. Id. ¶ 185.
86. Id. ¶ 191.
87. Id.
88. Id.
89. Id.
90. Id. ¶ 192.
2016 International Human Rights Law in Terrorism Cases 73

El-Masri alleged Macedonia violated Article 13 of the European Conven-

tion on Human Rights. Article 13 requires that persons whose rights have
been violated “shall have an effective remedy before a national authority.”91
When torture, cruel, inhuman, and degrading treatment violations are also
alleged (Article 3), the ECHR ruled, “Article 13 requires independent and
rigorous scrutiny of the claim that there exist substantial grounds for fearing
a real risk of treatment contrary to Article 3.”92 Importantly, it held, “[t]his
scrutiny must be carried out without regard to what the person may have
done to warrant expulsion or to any perceived threat to the national security
of the expelling State.”93

C. Aslakhanova v. Russia in the ECHR

Five families filed a claim against Russia after their sons, fathers, or brothers
disappeared in Grozny, Chechnya. They claimed violations of the European
Convention on Human Rights for the disappearances and for Russia’s re-
fusal to provide any documentary evidence relating to their abductions and
disappearances.94 Russia’s antiterrorism legislation requires that “technical”
aspects of counterterrorism programs and the names of those involved must
remain secret. The ECHR ruled that Russia violated the victims’ and families’
rights, including their right to an investigation, truth, and judicial remedy.
The court explained that once “applicants . . . make a prima facie case
. . . it would then be for the Government to discharge their burden of proof
either by disclosing the documents in their exclusive possession or by provid-
ing a satisfactory and convincing explanation of how the events in question
occurred.”95 If the government “fail[s] to disclose crucial documents to en-
able the Court to establish the facts or otherwise provide a satisfactory and
convincing explanation, strong inferences may be drawn.”96 States have the
burden of explaining any deaths or injuries that occur to persons in state
custody. The ECHR recognized that states control nearly all the evidence
in cases like these so applicants may meet the prima facie threshold with
witness statements. In this case, Russia claimed it was not required to pro-
duce information regarding the alleged disappearances claiming “the rule of
confidentiality [was] one of the foundations of [its] anti-terrorist activity.”97

91. Id. ¶ 251.

92. Id. ¶ 257.
93. Id.
94. Aslakhanova v. Russia, Eur. Ct. H.R., App. Nos. 2944/06, 8300/07, 50184/07, 332/08,
42509/10 (2012), ¶ 6.
95. Id. ¶ 98.
96. Id. ¶ 97.
97. Id. ¶ 194.
74 HUMAN RIGHTS QUARTERLY Vol. 38

The ECHR acknowledged “the need to mount an efficient system capable

of counteracting [terrorists], and maintaining law and order in this much-
suffering region.”98 However, it ruled, “the confines of a democratic society
governed by the rule of law cannot allow this system to operate in condi-
tions of guaranteed impunity for the abuses committed by its agents.”99 The
court refused to permit blanket confidentiality on these alleged abuses. “It
should be possible to ensure accountability of the anti-terrorist and security
services,” it explained, “without compromising the legitimate need to combat
terrorism and to maintain the necessary level of confidentiality.”100 Failure to
provide this information was a violation of the right to truth, investigations,
and judicial process protected by the Convention.

VII. Treaties and Customary International Law

The International Covenant on Civil and Political Rights (ICCPR) requires

states to provide effective remedies for any violations of its provisions.101
State secrets and related doctrines cannot be used to eliminate a victim’s
right to an effective remedy. As the Covenant’s implementing body, the Hu-
man Rights Committee (HRC), has held that even if a state “may introduce
adjustments to the practical functioning of its procedures governing judicial
or other remedies” during a state of emergency, it “must comply with the
fundamental obligation . . . to provide a remedy that is effective.”102
In Rodriguez v. Uruguay, the HRC ruled that Uruguay’s amnesty law
violated the ICCPR because it denied Rodriguez an effective remedy for
egregious violations. The HRC cited its General Comment No. 20 holding,
“[c]omplaints must be investigated promptly and impartially by competent
authorities so as to make the remedy effective.”103 “Amnesties,” the HRC
explained, “are generally incompatible with the duty of States to investigate
such acts; to guarantee freedom from such acts within their jurisdiction; and
to ensure that they do not occur in the future.”104 This reasoning prohibits
secrecy doctrines from eliminating a victim’s right to an effective remedy.
States may be permitted, however, to use secrecy doctrines if the victim’s
rights are preserved. The limitation imposed by the assertion of secrecy must

98. Id. ¶ 231.

99. Id.
100. Id.
101. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res.
2200 (XXI), U.N. GAOR, 21st Sess. art. 2(3)(a), U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171 (entered into force 23 Mar. 1976).
102. General Comment No. 29: States of Emergency (Article 4), adopted 31 Aug. 2001, U.N.
GAOR, Hum. Rts. Comm., 1950th mtg., ¶ 14, U.N. Doc. No. CCPR/C/21/Rev.1/Add.11
(31 Aug. 2001).
103. Communication No. 322/1988, Submitted by Hugo Rodríguez, adopted 9 Aug. 1994,
U.N. GAOR, Hum. Rts. Comm., 51st Sess, ¶ 12.3, U.N. Doc.CCPR/C/51/D/322/1988
(1994).
104. Id.
2016 International Human Rights Law in Terrorism Cases 75

be proportionate to the public interest protected and include the least restric-
tive way of accommodating national security concerns. The HRC held that
when states derogate from obligations in the Covenant “such measures are
limited to the extent strictly required by the exigencies of the situation.”105 It
explained, “[T]he obligation to limit any derogations to those strictly required
by the exigencies of the situation reflects the principle of proportionality
which is common to derogation and limitation powers.”106 When states use
secrecy doctrines, they are limiting a person’s right to an effective remedy
protected by the Covenant. The HRC’s requirements on derogation, therefore,
reflect a legal threshold even if states do not formally derogate the right.
The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT) requires states to investigate and to punish
allegations of torture.107 Its effective remedy provisions impose even more
stringent obligations on state parties. Using secrecy doctrines to eliminate state
obligations to investigate and remedy allegations of torture is a violation of
CAT.108 The United Nations General Assembly stressed the importance of the
right to an effective remedy for human rights violations in several resolutions
and covenants such as the “Basic Principles and Guidelines on the Right to
a Remedy,” the International Convention for the Protection of All Persons
from Enforced Disappearance, and the “Set of Principles for the Protection
and Promotion of Human Rights through Action to Combat Impunity.”109
Principle 1 of the latter requires states, “[T]o ensure the inalienable right
to know the truth about violations.” Principle 4 holds, “Irrespective of any
legal proceedings, victims and their families have the imprescriptible right
to know the truth about the circumstances in which violations took place
and, in the event of death or disappearance, the victims’ fate.”110

105. General Comment No. 29, supra note 101, ¶ 14.

106. Id.
107. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., arts. 12–14,
U.N. Doc. A/39/51 (1985), 1465 U.N.T.S. 85 (entered into force 26 June 1987).
108. See General Comment No. 2: Implementation of Article 2 by States Parties, adopted 24
Jan. 2008, Comm. Against Torture, U.N. Doc. No. CAT/C/GC/2 (24 Jan. 2008).
109. U.N. Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations
of International Humanitarian Law, adopted by G.A. Res. 60/147, 16 Dec. 2005, ¶ 11;
International Convention for the Protection of All Persons from Enforced Disappearance,
adopted 20 Dec. 2006, G.A. Res. 61/177, U.N. GAOR, 61st Sess., art. 2, U.N. Doc. A/
Res/61/177 (2007) (entered into force 23 Dec. 2010); See also Velásquez-Rodríguez v.
Honduras, supra note 73, ¶¶ 155–58; Updated Set of Principles for the Protection and
Promotion of Human Rights through Action to Combat Impunity, Report of the inde-
pendent expert to update the Set of principles to combat impunity, Diane Orentlicher,
Addendum, U.N. ESCOR, Comm’n on Hum. Rts., 61st Sess., Agenda Item 17, Principles
19–30, U.N. Doc. No. E/CN.4/2005/102/Add.1 (8 Feb. 2005).
110. Updated Set of Principles for the Protection and Promotion of Human Rights through
Action to Combat Impunity, Report of the independent expert to update the Set of prin-
ciples to combat impunity, Diane Orentlicher, Addendum, U.N. ESCOR, Comm’n on
Hum. Rts., 61st Sess., Agenda Item 17, Principle 4, U.N. Doc. No. E/CN.4/2005/102/
Add.1 (8 Feb. 2005).
76 HUMAN RIGHTS QUARTERLY Vol. 38

These Conventions, rulings by implementing bodies, UN resolutions, and

regional court rulings, demonstrate that the right to truth, to an investigation,
and to a remedy are protected in customary international law.111 The use
of secrecy doctrines cannot, therefore, eliminate the right of the victim, his
or her family, or society to know the truth about human rights violations.

VIII. International Law in Domestic Accountability

Proceedings

A. The United Kingdom

In early 2011, the British Security Service launched an operation with

security forces in Somaliland to capture two British citizens suspected of
involvement in terrorism, Mohamed Ahmed Mohamed and CF. After their
capture, Somaliland officials, with the help of the British Security Service,
detained and interrogated the two men for three months. The men alleged
they were tortured during their detention, and that British officers partici-
pated in the abuse. In March, the Security Service transferred the men to
the United Kingdom where they were subject “to control orders and . . .
terrorism prevention and investigation measures.”112
While the men did not challenge these actions, they did challenge their
transfer from Somaliland to the United Kingdom as an “abuse of process.”
In the Administrative Court, Lord Justice Lloyd Jones allowed the Secretary
of State to submit “closed material” evidence to which the detainees were
denied access. Lord Justice Lloyd Jones upheld the control and terrorism
prevention measures in an open and closed judgment.113 Regarding the
abuse of process claim, he pointed out that the Secretary of State “neither
confirms nor denies that the UK authorities were involved in the arrest, deten-
tion and deportation of [the appellants].”114 He ruled that even though “the
arrest, detention and deportation of the appellants were not in accordance
with Somaliland law,” none of the measures imposed against the appellants
were “offensive to the court’s sense of justice and propriety” and did not
“undermine public confidence in the legal system.”115 Lord Justice Lloyd

111. See Jeffrey Davis, Seeking Human Rights Justice in Latin America 65 (2013).
112. Mohamed Ahmed Mohamed and CF v. Secretary of State for the Home Department,
[2014] EWCA (Civ) 559 [6–8], (Lord Justice Maurice Kay), (appeal taken from EWHC
Admin.)(UK).
113. Id. ¶ 4.
114. Id. ¶ 2, see Mohamed Ahmed Mohamed and CF v. Secretary of State for the Home
Department, [2012] EWHC 2837 (Admin): [2013] 1 WLR 2171.
115. Mohamed Ahmed Mohamed and CF, supra note 112.
2016 International Human Rights Law in Terrorism Cases 77

Jones declined to explain his reasoning in his open judgment. His ruling
was based on evidence the appellants did not see, and was further recorded
in documentation to which he did not have access.
On appeal, the appellants argued that by denying them “even the gist
of the Secretary of State’s case on abuse of process, most importantly on the
issues of collusion and mistreatment,” they were unable “to give instructions
to enable that case to be met.”116 In addition, because the judge below is-
sued his ruling on this point in a closed judgment, appellants had no idea
why they lost, or even “to what extent their allegations of collusion and
mistreatment were accepted or rejected.”117 The Court of Appeal ruled that
the closed material procedure used by the Administrative Court deprived
appellants of the right to a fair process guaranteed by British common law
and by the European Convention.118
In reaching its conclusion, the Court of Appeal relied on two cases from
the ECHR, A. v. UK and the El-Masri case discussed above.119 In A v. UK,
the ECHR considered a challenge brought by eleven individuals detained
as suspected terrorists under the Anti-terrorism, Crime and Security Act of
2001.120 The law allowed the Secretary of State to issue a certificate stating
that a person was believed to be a terrorist threat; the Special Immigration
Appeals Commission (SIAC) then had the authority to review the validity of
the certificate. Here, the basis of the Secretary of State’s certificate was kept
secret and the ECHR was forced to consider whether this process violated
the Convention.
The ECHR reiterated its earlier endorsement of special advocates to
protect the interests of the nonstate party when state secrecy is deemed
necessary. A “special advocate” is an attorney authorized to view secret
evidence, and appointed to represent the plaintiff’s interests before the court.
The ECHR explained, “[T]he special advocate could perform an important
role in counterbalancing the lack of full disclosure and the lack of a full,
open, adversarial hearing by testing the evidence and putting arguments
on behalf of the detainee during the closed hearings. However, the special
advocate could not perform this function in any useful way unless the de-
tainee was provided with sufficient information about the allegations against
him to enable him to give effective instructions to the special advocate.”121
The ECHR ultimately ruled, “[W]here the evidence was to a large ex-
tent disclosed and the open material played the predominant role in the
determination” the state effectively protected the detainee’s rights under the

116. Id. ¶ 10.

117. Id.
118. Id.
119. See generally Mohamed Ahmed Mohamed and CF, supra note 112.
120. Case of A and Others v. U.K., Eur. Ct. H.R., App. No. 3455/05 (2009).
121. Id. ¶ 220.
78 HUMAN RIGHTS QUARTERLY Vol. 38

Convention. It explained, “[E]ven where all or most of the underlying evidence

remained undisclosed, if the allegations contained in the open material were
sufficiently specific, it should have been possible for the applicant to provide
his representatives and the special advocate with information with which
to refute them . . . without his having to know the detail or sources of the
evidence which formed the basis of the allegations.”122 In this way, the state
would have effectively protected the detainee’s rights. On the other hand if
“the open material consisted purely of general assertions and [the] decision
to uphold the certification and maintain the detention was based solely or
to a decisive degree on closed material” the state would be violating the
detainee’s rights under the Convention.123
In the Mohamed and CF case the government argued that the A. v.
UK ECHR holding only applied to cases against alleged terrorists and not
to cases where the government was accused of wrongdoing. The Court of
Appeal rejected this distinction as a “radical departure from procedural and
constitutional normality.”124 Lord Justice Kay (with whom Lord Justice Sullivan
and Lord Justice Briggs agreed) stressed, “[I]t is no answer that terrorism is
horrendous” and that the appellants have not appealed the factual findings
against them. He explained, “However grave the case, there can come a
point where ‘the court’s sense of justice and propriety is offended.’”125
According to the Court of Appeal, the statutory closed material proce-
dure “does not give rise to tolerance, in relation to a potentially dispositive
issue, of the total withholding of the Secretary of State’s case on collusion
and mistreatment or the total confinement of the reasons for rejecting the
appellants’ case on those issues to the closed judgment.”126 Lord Justice Kay
relied on the El-Masri case’s holding on the importance of “maintaining
public confidence in their adherence to the rule of law and in preventing
any appearance of collusion in or tolerance of unlawful acts.”127 In ruling
against the closed material procedure in Mohamed and CF, he stressed the
ECHR’s emphasis in El-Masri on the principle that “impunity must be fought
as a matter of justice for the victims, as a deterrent to prevent new viola-
tions and to uphold the rule of law and public trust in the justice system.”128
The application of international human rights law, especially rulings of
the ECHR, is prevalent in British courts. In the Binyam Mohamed case, when
the British High Court ruled that redacted portions of its earlier judgment
should be made public over the objections of the Foreign Secretary, the court

122. Id.
123. Id. ¶ 220.
124. Mohamed Ahmed Mohamed and CF, supra note 112, ¶ 16.
125. Id.
126. Id.
127. Id. ¶ 13.
128. Id.
2016 International Human Rights Law in Terrorism Cases 79

relied on rulings of the ECHR. In particular, the High Court cited Pretto v.
Italy for the principle that “[b]y rendering the administration of justice vis-
ible, publicity contributes to… a fair trial, the guarantee of which is one of
the fundamental principles of any democratic society.”129 The High Court
also relied on the ECHR’s ruling in Campbell & Fell v. UK that “decisions
and reasons must be made public.”130
In civil cases, the ECHR provides additional guidance on the legality of
secrecy doctrines in its cases dealing with the prosecution of accused terror-
ists. When prosecutors charged Clifford George McKeown with possession
of firearms and materials to be used in terrorism, his lawyers requested all
material in the government’s possession that led to his arrest. The prosecu-
tors claimed the information should remain secret under public interest
immunity and sought ex parte consideration of their nondisclosure request
from a “disclosure judge” who was not presiding over the criminal case.131
The ECHR ruled that Northern Ireland had properly balanced McKeown’s
rights with the public interest that supported nondisclosure. It stressed that
to ensure legal standards were met states may use a “disclosure judge” to
solve disputes and may further appoint special counsel to monitor the po-
tential necessity of disclosure during proceedings.132 This ruling also applies
to cases in which victims are suing governments. When governments claim
that evidence must be secret, a disclosure judge is one mechanism that may
be utilized to allow the evaluation of evidence for its probative value without
prejudicing the plaintiffs’ claims or the government’s assertion of privilege.
The role of the ECHR and the authority of international law in British
cases provide a meaningful check on the conflict of interest described by
the IACtHR in the Mack case—that the institution of government accused of
rights violations should not be given carte blanche to decide what evidence
remains secret. No such check exists in the United States.

B. The United States

Of the more than 120 US federal courts decisions on the state secrets privi-
lege not even one considered whether enforcing the privilege would violate
international law.133 This is especially striking given the clear rules of inter-

129. Mohamed (2009), supra note 22, ¶ 38, quoting Pretto v Italy, 6 Eur. Ct. H.R. 182 (1984),
¶ 25.
130. Id. ¶ 39.
131. McKeown v. The United Kingdom, Eur. Ct. H.R., App. No. 6684/05, 11 Jan. 2011, ¶
11.
132. Id. citing Atlan v. The United Kingdom, 36533/97, 19-06-2001.
133. This determination was made by searching “state secrets” and “international law” (and
several other similar searches) on WestLaw.
80 HUMAN RIGHTS QUARTERLY Vol. 38

national law discussed above that limit the use of the privilege. The United
States apparently recognizes its international law obligation to investigate
and to provide judicial protection when there are allegations of torture.
In its responses to questions raised by the Committee against Torture, the
United States stated, “U.S. law provides various avenues for seeking redress,
including financial compensation, in cases of torture . . . [f]iling criminal
charges, . . .[b]ringing a civil action in federal or state court under the federal
civil rights statute, . . . [s]uing federal officials directly for damages under
provisions of the U.S. Constitution for ‘constitutional torts.’”134 However,
all the methods indicated in the US response could be terminated with the
state secrets privilege, without even a cursory review of the allegedly secret
evidence by an independent judicial body.
The HRC has expressed “concern that all reported investigations into
enforced disappearances, torture and other cruel, inhuman or degrading
treatment committed in the context of the CIA secret rendition, interrogation
and detention programmes were closed in 2012, resulting in only a meager
number of criminal charges being brought against low-level operatives.”135
The HRC noted the effect of the state secrets privilege in eroding inves-
tigations and accountability expressing its discontent “that many details of
the CIA programme remain secret thereby creating barriers to accountability
and redress for victims (Articles. 2, 6, 7, 9, 10, and 14).”136 It called on the
United States to “ensure that all cases of unlawful killing, torture or other
ill-treatment, unlawful detention, or enforced disappearance are effectively,
independently and impartially investigated.”137
When the Ninth Circuit Court of Appeals dismissed Binyam Mohamed’s
case against Jeppesen on state secrets grounds, it suggested Mohamed and
his fellow plaintiffs seek alternative remedies. Judge Hawkins wrote the dis-
senting opinion in which he ridiculed the majority’s suggestion and stressed
the utter failure of the judiciary to meet its obligation to provide a remedy
for Mohamed’s allegations. “Not only are these [alternative] remedies insuf-
ficient,” Judge Hawkins explained, “[B]ut their suggestion understates the
severity of the consequences to Plaintiffs from the denial of judicial relief.”138
He pointed out, “[S]uggesting . . . that the Executive could ‘honor the fun-
damental principles of justice’ by determining ‘whether plaintiffs’ claims

134. United States Written Response to Questions Asked by the Committee Against Torture,
citing Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), available at http://
www.state.gov/documents/organization/68662.pdf.
135. Concluding Observations on the Fourth Periodic Report of the United States of America,
U.N. GAOR, Hum. Rts. Comm., 110th Sess., ¶ 5, U.N. Doc. CCPR/C/USA/CO/4 (23
Apr. 2014).
136. Id.
137. Id.
138. Mohamed v. Jeppesen, supra note 6, at 1101 (J. Hawkins, dissenting).
2016 International Human Rights Law in Terrorism Cases 81

have merit’. . . disregards the concept of checks and balances.”139 Moreover,

“permitting the executive to police its own errors and determine the remedy
dispensed would not only deprive the judiciary of its role, but also deprive
Plaintiffs of a fair assessment of their claims by a neutral arbiter.”140 Accord-
ing to Judge Hawkins, these suggestions in addition to the “suggestion of
payment of reparations to the victims of extraordinary rendition . . . elevates
the impractical to the point of absurdity.”141

IX. Conclusion

United States jurisprudence on the state secrets privilege violates basic

principles of judicial protection and due process. Even though courts ac-
knowledge the dangers of accepting secrecy privileges, they continue to do
so without imposing any procedural safeguards or evidentiary penalties on
the government for doing so. The United States should adopt an approach
based on the IACtHR and ECHR’s rules on government attempts to stifle
litigation on national security grounds. At least in civil cases, once plain-
tiffs establish a prima facie case of disappearance, torture, or other serious
human rights violation, the burden should shift to the government to offer
an explanation about what happened to the victim. The state could then
try to rebut the presumption established by the prima facie case. If instead
the state wishes to keep evidence secret, the presumption would stand
and liability could be established. The US systems, as they stand, violate
international law obligations that require investigations and prosecutions
for these particular violations. Table 1 demonstrates the international hu-
man rights law limitations on the use of secrecy in accountability cases and
the source of each limitation. Of course, ECHR and IACtHR decisions only
reflect law that is binding on nations that have submitted to the jurisdiction
of those courts. However, because many of these limitations are expressed
in multiple sources, they may indeed reflect customary international law
that is binding on all nations.
The role of secrecy in counterterrorism cases is very much an ongoing
controversy. The British coalition government pushed for reform legislation to
curtail what it saw as the “increasing intrusiveness of the courts.”142 However,
as Colin Murray argued, “[t]his explanation . . . neglects the degree to which
the UK’s malfunctioning security partnerships necessitated this scrutiny.”143

139. Id.
140. Id.
141. Id.
142. C. R. G. Murray, Out of the Shadows: The Courts and the United Kingdom’s Malfunction-
ing International Counter-Terrorism Partnerships, 18 J. Conflict Sec. L. 193, 203 (2013).
143. Id.
82 HUMAN RIGHTS QUARTERLY Vol. 38

Table 1.

Rule Source

States may not use secrecy doctrines to ICCPR

eliminate their obligations to fully CAT
investigate serious human rights American Convention for Human Rights
violations and to provide victims European Convention for Human Rights
with the truth and with meaningful Mack v. Guatemala (IACtHR)
criminal and civil remedies. Blake v. Guatemala (IACtHR)
Velásquez Rodriguez Case (IACtHR)
Barrios Altos Case (IACtHR)
El-Masri v. Macedonia (ECHR)
Aslakhanova v. Russia (ECHR)
Basic Principles and Guidelines on the
Right to a Remedy,
 International Convention for the
Protection of All Persons from Enforced
Disappearance
Set of Principles for the Protection and
Promotion of Human Rights through
Action to Combat Impunity

If states must impose secrecy limitations Judicial Guarantees in States of

in the investigation, litigation and prosecution Emergency (IACtHR)
of human rights violations they must only do HRC General Comment No. 29
so to the extent necessitated by the national
security concern.

The limitation imposed must be HRC General Comment No. 29

proportionate to the national security need.

Once claimants have presented a prima Velásquez Rodriguez Case (IACtHR)

facie case of torture, disappearance, extra- Aslakhanova v. Russia (ECHR)
judicial killing or other grave human rights International Convention for the
violations, states have the burden of presenting Protection of All Persons from
evidence regarding the alleged violations. Enforced Disappearance
If states fail to disclose evidence to rebut the
claimants’ case, courts may draw inferences
from that failure.

An independent judge or tribunal with the Mack v. Guatemala (IACtHR)

authority to review the secret evidence and Judicial Guarantees in States of
order its full or partial release must evaluate Emergency (IACtHR)
any assertion of a secrecy doctrine. A. v. UK (ECHR)
 McKeown v. The United Kingdom
(ECHR)

If evidence warrants secrecy protection McKeown v. The United Kingdom

the tribunal should appoint a special (ECHR)
advocate with access to the evidence to Atlan v. The United Kingdom (ECHR)
represent the plaintiffs interests.

Plaintiffs must be provided with sufficient A. v. The United Kingdom (ECHR)
information to direct the special advocate McKeown v. The United Kingdom
on their behalf. (ECHR)
2016 International Human Rights Law in Terrorism Cases 83

In 2013, the British Parliament passed the Justice and Security Act (JSA) to
increase the government’s power to keep information secret in court. The
JSA empowers a court to use a closed material procedure if disclosing evi-
dence “would be damaging to the interests of national security” and using
the procedure “is in the interests of the fair and effective administration of
justice.”144 Closed material procedures allow the government to use secret
evidence to bolster its case without subjecting that evidence to the scrutiny
of its legal opponents or the media. The traditional public interest immunity
doctrine requires the government to choose between keeping the evidence
secret or submitting it in open court.
A former Law Lord and Intelligence Services Commissioner, Lord Brown,
described the JSA as “so radical a departure from the cardinal principle
of open justice in civil proceedings, so sensitive an aspect of the court’s
processes, that everything that can possibly help minimi[z]e the number of
occasions when the power is used should be recogni[z]ed.”145 While the
JSA empowers the government to more easily rely on secret evidence, it still
includes more safeguards than the US state secrets privilege. For example,
the JSA requires the court declaring the closed material procedure to “keep
the declaration under review” and “revoke it if it considers that the declara-
tion is no longer in the interests of the fair and effective administration of
justice in the proceedings.”146 The JSA also allows courts to appoint a special
advocate to represent the interest of the party excluded from the closed
material.147 When deciding the appropriate application of the closed mate-
rial procedure in counterterrorism cases, the presence of the ECHR forces
British lawmakers and courts to consider international law. Advocates are
likely to eventually challenge the JSA in the ECHR.
This article suggests three dominant principles. First, modern secu-
rity operations are transnational, and so too are the efforts to hold those
responsible for unlawful behavior. This, in turn, increases the potency of
international law in controlling these operations. Second, while secrecy
is necessary in security operations, national security may be protected
without dismissing cases through blanket, absolute secrecy protections.
Third, judicial oversight of counterterrorism operations and the assertion of
secrecy doctrines are absolutely essential to protect the basic rights to judi-
cial protection, an investigation, a remedy, and the truth. Without judicial
oversight, the prohibition of torture is a toothless admonition. Legal expert
Murray illustrates this point showing that even while the British government

144. Justice and Security Act, § 6.11, 6.4, available at http://www.legislation.gov.uk/uk-

pga/2013/18/contents/enacted.
145. Tom Hickman, Turning out the Lights? The Justice and Security Act 2013, U.K. Const.
L. Blog, 11 June 2013, available at http://ukconstitutionallaw.org.
146. Justice and Security Act, supra note 144, §§ 7.2.
147. Id. § 9.
84 HUMAN RIGHTS QUARTERLY Vol. 38

pushed for increased secrecy protections “Prime Minister David Cameron

ultimately decided to make a clean break from the security agencies’ past
practices regarding security cooperation tainted by torture” as a result of the
litigation that had arisen.148 The US cases also demonstrate the importance
of thorough judicial supervision. In his dissent in Jeppesen, Judge Hawkins
challenged the majority’s holding that the case could not be litigated without
exposing state secrets by listing hundreds of publicly available documents
that supported the plaintiffs’ claims.149 He pointed out, “Arbitrary imprison-
ment and torture under any circumstance is a ‘gross and notorious . . . act
of despotism’… [b]ut ‘confinement [and abuse] of the person, by secretly
hurrying him to [prison], where his sufferings are unknown or forgotten; is a
less public, a less striking, and therefore a more dangerous engine of arbitrary
government.’”150 The United States should learn from the United Kingdom
and incorporate safeguards endorsed by the ECHR and other human rights
institutions. It is only through embracing human rights law that meaningful
national security can be attained.

148. Murray, supra note 142, at 204.

149. Mohamed v. Jeppesen, supra note 6, (J. Hawkins, dissenting), 1102–31.
150. Id. at 1101.