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Secrecy, National Security and the Vindication of Constitutional Law

Secrecy, National Security and the Vindication of Constitutional Law

Edited by David Cole, Federico Fabbrini and Arianna Vedaschi

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.

Chapter 1: Introduction

David Cole, Federico Fabbrini and Arianna Vedaschi

Subjects: law - academic, comparative law, constitutional and administrative law, criminal law and justice, human rights, terrorism and security law


No issue more profoundly challenges the commitments of constitutional democracy than secrecy in government. Representative democracy and the rule of law both require transparency and accountability, and secrecy strikes at the heart of both values. When government officials engage in secret actions on behalf of the state, they generally cannot be held accountable to the people for whom they purportedly act. What does it mean to have a government under law if it can act in ways that are effectively immune from legal regulation? Moreover, when the government’s actions affect the life, liberty, or property interests of individuals, secret actions – or public actions justified on the basis of secret evidence threaten to undermine basic protections of procedural fairness. How can one defend oneself against a case that is not disclosed? At the same time, secrecy is essential to effective governance, nowhere more so than in the arena of national security. Even where national security is not at issue, much of the work government does occurs behind closed doors – including, for example, the deliberations of courts. If governance had to be conducted entirely in the open, it would be impossible to get candid advice, and thus most legal systems recognize the validity of privileges that keep confidential many of the internal discussions that inform government actions. Where the police are investigating crime, secrecy is also often essential, so as not to tip off those who may be under suspicion. When the crimes being investigated are not just any crimes, but crimes that seek to spread terror through the civilian population