State Secrets in Court Proceedings

A Comparison of German and US Law

Serious difficulties arise whenever state secrets are involved in judicial proceedings. Even in ideal circumstances where secrecy protects legitimate interests, the administration of justice may be obstructed. If the pertinent information is excluded, the rule of law might be endangered and important evidence omitted, to the disadvantage of one or more parties. On the other hand, if such information is included, special security measures may be required that restrict important judicial safeguards such as the open-court principle or the publication of court decisions. Among its wider consequences, such an approach can stifle public debate and civic engagement, arouse suspicion, and stigmatize the judiciary as a clandestine and untrustworthy institution. Thus far, this topic has been addressed principally from a national perspective. The very few transnational studies that exist explore only parts of the question, and refrain from committed comparative analyses.
This doctoral project aims to address these scholarly gaps by engaging in a comparative law analysis of the handling of state secrets by German and American courts. Using a blend of legal methods including doctrinal analysis, legal comparison, case studies, and normative critique, the project analyses their various approaches, assesses their shortcomings, and evaluates proposed reforms. A particular focus is on refining our understanding of a ‘state secret’, the goal not being to seek a universally valid definition, but to identify and map existing differences in national meanings. Importantly, the project is not restricted to criminal matters, but also considers US civil court and German administrative court proceedings—that is, nominally all state court action involving state secrets in both jurisdictions. Preliminary results show that while both countries confront different secrets and employ different procedures, surprising similarities reveal much about the steps democratic states choose to take in this complex regulatory area. Though resonating with multiple dimensions of the Department of Public Law’s tripartite research matrix, including a growing internationalisation of secret state activities, this project fits most decisively with its third dimension relating to challenges to fundamental rights, the rule of law, and democracy.