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.
Edited by David Cole, Professor of Law, Georgetown University Law Center, US, Federico Fabbrini, School of Law and Government, Dublin City University, Ireland and Arianna Vedaschi, Associate Professor of Law, Bocconi University, Italy
Contents: 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 (retired) 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 and 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 I. Vladek PART IV: SECRECY AND CRIMINAL TRIALS 12. The Normalization of Anonymous Testimony Jason Mazzone and Tobias Fischer 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 Measures - 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 Justice (retired) Lech Garlicki Index