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Virtually every nation has had to confront tensions between the rule-of-law demands for transparency and accountability and the need for confidentiality with respect to terrorism and national security. This book provides a global and comparative overview of the implications of governmental secrecy in a variety of contexts. Expert contributors from around the world discuss the dilemmas posed by the necessity for – and evils of – secrecy, and assess constitutional mechanisms for checking the abuse of secrecy by national and international institutions in the field of counter-terrorism.
In recent years, nations have relied on secret evidence to detain suspected terrorists and freeze their assets, have barred lawsuits alleging human rights violations by invoking ‘state secrets’, and have implemented secret surveillance and targeted killing programs. The book begins by addressing the issue of secrecy at the institutional level, examining the role of courts and legislatures in regulating the use of secrecy claims by the executive branch of government. From there, the focus shifts to the three most vital areas of anti-terrorism law: preventive detention, criminal trials and administrative measures (notably, targeted economic sanctions). The contributors explore how assertions of secrecy and national security in each of these areas affect the functioning of the legal system and the application of procedural justice and fairness.
Students, professors and researchers interested in constitutional law, international law, comparative law and issues of terrorism and security will find this an invaluable addition to the literature. Judges, lawyers and policymakers will also find much of use in this critical volume.
Foreword
Martin Scheinin
1. Introduction
David Cole, Federico Fabbrini and Arianna Vedaschi
PART I: SECRECY AND COURTS
2. Terrorism and Security: Back to the Future?
Lord Justice Stephen Sedley
3. Oversight of National Security Secrecy in the United States
Stephen Schulhofer
4. Secrecy vs. Openness: Counterterrorism and the Role of the German Federal Constitutional Court
Mindia Vashakmadze
5. Formalism and State Secrets
Sudha Setty
PART II: SECRECY AND LEGISLATURES
6. Direct and Indirect Access to Intelligence Information: Lessons in Legislative Oversight from the United States and Canada
Kathleen Clark and Nino Lomjaria
7. Arcana Imperii and Salus Rei Publicae: State Secrets Privilege and the Italian Legal Framework
Arianna Vedaschi
PART III: SECRECY AND DETENTION
8. Managing Secrecy and its Migration in a Post-9/11 World
Kent Roach
9. National Security, Secret Evidence and Preventive Detentions: the Israeli Supreme Court as a Case Study
Shiri Krebs
10. Secrecy and Control Orders: The Role an Vulnerability of Constitutional Values in the United Kingdom and Australia
Andrew Lynch, Tamara Tulich and Rebecca Welsh
11. Comparative Advantages: Secret Evidence and ‘Cleared Counsel’ in the United States, the United Kingdom and Canada
David Cole and Stephen Vladek
PART IV: SECRECY AND CRIMINAL TRIALS
12. The Normalization of Anonymous Testimony
Jason Mazzone and Tobias Fisher
13. Terrorists on Trial: an Open or Closed Case?
Clive Walker
14. In/Visible Courts: Military Tribunals as Other Spaces
Ori Aronson
PART V: SECRECY AND ADMINISTRATIVE MEASURES
15. Administrative Counter-Terrorism – A Strategy to Circumvent Human Rights in the Fight Against Terrorism
Tuomas Ojanen
16. Secret Evidence in EU Security Law: Special Advocates before the Court of Justice?
Cian C. Murphy
17. Global Sanctions, State Secrets and Supranational Review: Seeking Due Process in an Interconnected World
Federico Fabbrini
18. Secrecy Regulation by the European Union Inside Out
Deirdre Curtin
19. Concluding Remarks
Lech Garlicki
David Cole, Professor of Law, Georgetown University Law Center, US, Federico Fabbrini, Assistant Professor of European and Comparative Constitutional Law, Tilburg Law School, The Netherlands and Arianna Vedaschi, Associate Professor of Law, Bocconi University, Italy
‘This is an important collection of scholarly essays that will illuminate positive legal developments and normative constitutionalist concerns in the expanding arena of secret government decisions. This book is indispensable reading for those concerned with constitutionalism, the rule of law and democracy as they bear on the tensions between secrecy and disclosure in government responses to terrorism.’
– Vicki C. Jackson, Harvard University Law School, US
‘This book contains the broadest and deepest analysis of the legal and policy issues that relate to secrecy and national security on one hand, and the imperatives of a functioning democracy on the other. The broadest because it brings to bear materials from many countries, the deepest because it brilliantly explores a core problem of constitutional government.’
– Norman Dorsen, New York University, US and President, American Civil Liberties Union, 1976–1991
