Secrecy, National Security and the Vindication of Constitutional Law
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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.
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Chapter 2: Terrorism and security: back to the future?

Lord Justice (retired) Stephen Sedley


This book will be very different from the book which might have been written ten years ago under the auspices of the International Association of Constitutional Law on the same topic. Then, the world was still reeling from the enormity of Al Qaeda’s attack on its arch-enemy, the United States (US). President Bush, like King Lear, was promising to ‘do such things…’. What they would be we knew not, though they turned out to include a war on a state which had had nothing to do with the attack, stimulating a still unsatisfied appetite for enforced regime change. They have also more recently come to include the use of transnational assassination, with major implications for international law as well as for domestic principles of due process which may, however, lie at or beyond the perimeter of this volume. But this time ten years ago the first constitutional steps, following the Security Council resolutions calling upon member states to inaugurate tougher regimes of surveillance and repression were already being taken. The distinguished South African jurist Richard Goldstone called them a tyrant’s dream – a licence to every undemocratic regime to repress its dissidents. Ten years later, we are beginning to survey and appraise the consequences for constitutional democracy. Nobody doubts the continuing need for a new level of vigilance. At one pole this has produced a pseudo-jurisprudence which holds that persons suspected of terrorism have no rights: they can be held indefinitely without trial and tortured freely to extract information.

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