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 19: Concluding remarks

Justice (retired) Lech Garlicki

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


This book debates the role of constitutional law in elaborating a fair balance between secrecy, understood as a necessary tool to protect the national security, and human rights. Three introductory questions may help to put this debate into a broader perspective: How new is the inclination to resort to secret measures when the society is in danger? If so, is there anything new in the present crisis that distinguishes it from earlier historical situations? Is the modern constitutional doctrine better equipped to respond to the emerging problems and risks? In the twenty-first century, it cannot be denied that effective anti-terrorist measures require a fair amount of secrecy. But, at the same time, it may be useful to put this observation into a wider historical context. Although it is true that balancing secrecy, national security and constitutional law is particularly pertinent to the modern world, similar problems have existed for centuries. There have always been evil forces, genuine or imagined, perceived as a threat to society, and there has always been a strong belief that secret measures are particularly efficient to protect those who deserve such protection. The Holy Inquisition operated this way for several centuries. It was no accident that as modern society became more organized, matters of state security were assigned to different ‘secret’ services and institutions. And it was not a co- incidence that some of the most dreaded organizations of that kind, like the Nazi Gestapo, included the adjective ‘secret’ in their very names (Geheim Staatspolizei).

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