A nation must think before it acts.
Center for Ethics and the Rule of Law
A reply in defense of the state secrets privilege
Two articles, one by Mark Fallon and the other by Professor Claire Finkelstein, who are, respectively, the interim executive director and the faculty director of the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania, have criticized the recent decision by the U.S. Supreme Court in United States v. Zubaydah. The Court concluded that the state secrets privilege had been properly invoked by the government to protect against the disclosure of information regarding a foreign site that was allegedly used in the CIA’s “enhanced interrogation” program—a program broadly condemned by critics and the U.S. Congress as employing torture. I disagree with their criticisms of the Zubaydah decision while acknowledging that, whether described as “torture” or, in the CIA’s more euphemistic patois, as “enhanced interrogation,” the program represents one of the darker moments in the history of the U.S. intelligence community.