Secrecy, national security and the vindication of constitutional law
Title: Secrecy, national security and the vindication of constitutional law
Publisher: Edward Elgar Publishing
Citation: Cheltenham ; Northampton : Edward Elgar Publishing, 2013
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.
Table of Contents:
-- Introduction / David Cole, Federico Fabbrini and Arianna Vedaschi -- Terrorism and security : back to the future? / Lord Justice (retired) Stephen Sedley -- Oversight of national security secrecy in the United States / Stephen Schulhofer -- Secrecy vs. openness : counterterrorism and the role of the German Federal Constitutional Court / Mindia Vashakmadze -- Formalism and state secrets / Sudha Setty -- Direct and indirect access to intelligence information : lessons in legislative oversight from the United States and Canada / Kathleen Clark and Nino Lomjaria -- Arcana Imperii and Salus Rei Publicae : state secrets privilege and the Italian legal framework / Arianna Vedaschi -- Managing secrecy and its migration in a post-9/11 world / Kent Roach -- National security, secret evidence and preventive detentions : the Israeli Supreme Court as a case study / Shiri Krebs -- Secrecy and control orders : the role and vulnerability of constitutional values in the United Kingdom and Australia / Andrew Lynch, Tamara Tulich and Rebecca Welsh -- Comparative advantages : secret evidence and "cleared counsel" in the United States, the United Kingdom and Canada / David Cole and Stephen I. Vladeck -- The normalization of anonymous testimony / Jason Mazzone and Tobias Fischer -- Terrorists on trial : an open or closed case? / Clive Walker -- In/visible courts : military tribunals as other spaces / Ori Aronson -- Administrative counter-terrorism measures : a strategy to circumvent human rights in the fight against terrorism? / Tuomas Ojanen -- Secret evidence in EU security law : special advocates before the Court of Justice? / Cian C. Murphy -- Global sanctions, state secrets and supranational review : seeking due process in an interconnected world / Federico Fabbrini -- Secrecy regulation by the European Union inside out / Deirdre Curtin -- Concluding remarks / Justice (retired) Lech Garlicki