Table of Contents

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 7: Arcana Imperii and Salus Rei Publicae: state secrets privilege and the Italian legal framework

Arianna Vedaschi

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


This chapter focuses on the state secrets privilege within the Italian legal framework. The Italian experience is particularly interesting because the state secrets privilege is specifically regulated by a law that has encompassed the principles decided by the Italian Constitutional Court. The first section examines the compatibility of the state secrets privilege with a democratic framework, while investigating the constitutional basis of the state secrets privilege according to the Italian Constitution. It also gives an account of the various scholarly stances on this issue. The second section analyzes the legislation on state secrets privilege, which has been partially amended by Law 133/2012 and more widely revised through Law 124/2007. The aim of the second section is to highlight Law 124/2007’s main innovations in relation to previous Law 801/1977 – approved thirty years earlier. The third section focuses on rulings of the Constitutional Court on state secrets, and criticizes the Court’s failure to fully carry out its oversight of the state secrets privilege. In my concluding remarks, I consider this failure of the Constitutional Court in jurisprudence, in the direction of greater and more effective oversight by both the Constitutional Court and an autonomous body. A preliminary discussion of the compatibility of the state secrets privilege with a democratic framework is important to understand this chapter’s argument. One of the cardinal principles of a democracy lies in the transparency of its government’s political action, which presupposes openness and access to information (i.e., facts, documents, etc.).

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