Edited by David Cole, Federico Fabbrini and Arianna Vedaschi
Chapter 7: Arcana Imperii and Salus Rei Publicae: state secrets privilege and the Italian legal framework
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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