Abstract:
The purpose of this article is to analyze the application of the State secret privilege in litigations concerning cases of extraordinary renditions in Italy and the United States (US). The article addresses the decision of the Italian Constitutional Court in the Abu Omar case and compares it with the case law of US federal courts in the El-Masri case. It is argued, with several caveats, that a common pattern emerges in both Italy and the US, whenever a case of extraordinary rendition is either investigated in a criminal proceeding or claimed in a civil suit for the purpose of civil liability: if the government invokes the existence of a State secret privilege, the judiciary shows utmost deference to the determination of the executive branch, making it impossible for the individuals allegedly subjected to extraordinary renditions to obtain justice before domestic courts. The article therefore examines what role legislatures and supranational human rights institutions could play to reverse this troubling trend, by assessing the differences and the similarities existing between Italy and the US. Even though legislatures, both in parliamentary and separation of powers systems, have proved either unwilling or unable to check the invocation of the privilege by the executive branch, the article suggests that the existence of judicial fora beyond the States, where individuals can bring their human rights claims, can be a valuable mechanism to ensure that allegations of extraordinary renditions are effectively adjudicated and redressed.
