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 8: Managing secrecy and its migration in a post-9/11 world

Kent Roach


Secrecy has emerged as a different type of legal and political problem since 9/11. Secrecy has always presented a threat to fairness and to transparent governance. Governments have always had an incentive to overclaim secrecy. Nevertheless, the post-9/11 focus on terrorism has changed the nature of the competing interests. In the Cold War era, secret information could generally remain secret forever so long as it was not leaked to the other side. Secret information was used to inform the strategic decisions of both sides and as a basis for removing suspected spies from a country or removing their security clearances. Such spies, however, were rarely prosecuted and they were not detained on the basis of secret evidence. Courts generally deferred to the government’s claims of secrecy and did not attempt to reconcile the competing values of secrecy and disclosure. Today, secrecy is more complex and challenging. In the immediate aftermath of 9/11, many democracies used secret evidence that was not disclosed to the detainee or the public to justify military and immigration detention. Such secret evidence is now used to justify targeting decisions under the US’s program for killing suspected terrorists with drones. The Security Council of the United Nations, as well as most domestic executives, use secret evidence to blacklist individuals and groups suspected of involvement in al Qaeda and the Taliban. Courts no longer blindly defer to governmental claims of secrecy. The creation of many new terrorist crimes designed to prevent terrorism means that what was once intelligence that could always remain secret

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