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 3: Oversight of national security secrecy in the United States

Stephen Schulhofer


In a constitutional system, the legislature is expected to play an active role in formulating policy, and the courts are expected to play an active role in protecting individual rights. But nonetheless, where issues affect- ing national security are concerned, executive officials in virtually all constitutional democracies typically exercise unchecked power to conceal information that is essential to the effective exercise of those legislative and judicial functions. In its actual practices, the United States (US) largely conforms to this pattern of de facto executive dominance, even though its formal laws grant substantial power to regulate secrecy to Congress and the courts. Although some secrecy in national security matters is appropriate and inevitable, unilateral executive control over decisions whether to impose secrecy is not. American law provides five separate processes for overriding executive secrecy judgments. Along with semi-independent review within the executive branch and oversight by Congress, three distinct bodies of law grant a checking function to the courts: the Classified Information Procedures Act (CIPA, applicable in criminal cases), the state secrets privilege (SSP, applicable in civil suits), and the Freedom of Information Act (FOIA, a statute that creates a free-standing cause of action to demand disclosure of information held by the government). These five systems differ considerably in the degree to which they involve deference to the executive, or – in contrast – active, independent judgments about the need for secrecy. American law thus provides broad scope to compare competing approaches. In addition, where American adversary procedures for the review of executive-branch secrecy are at their height (in CIPA),

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