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 14: In/visible courts: military tribunals as other spaces

Ori Aronson

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

Extract

Liberal democracy’s insistence on open, visible, and publicly accessible courts as an institutional staple of the ideal of the rule of law has faced a substantial challenge in the era of the legal fight against terrorism. As terrorist-suspects are apprehended and as detaining countries seek to ‘bring them to justice’, the requirements of security and secrecy as well as the politics of wartime sentiment have led democracies to devise an institutional alternative to regular civilian courts in the form of military tribunals. These forums, such as US military commissions, have been criticized as closed, secret, and inaccessible courts, and as such as affronts to the ideal of the rule of law and to the moral commitments of liberal democracy more generally. This chapter seeks to qualify these plausible critiques to military adjudication. I would like to suggest that in some contexts and in some respects, creating separate judicial forums for terrorism-related criminal adjudication might in fact enhance the visibility of the political and moral stakes involved in such exercises of state power; namely legal-judicial power employed as part of a conflict that retains essential qualities of ongoing war. I use Foucault’s concept of heterotopia in order to capture the unique qualities of military tribunals – spaces that societies establish in order to distinguish among the ‘normal’ elements of moral and political life (civilian adjudication) and those which are their essential others (military tribunals). Military tribunals are revealed in this analysis as sites that draw attention – and in this sense are constantly visible

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