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 11: Comparative advantages: secret evidence and ‘cleared counsel’ in the United States, the United Kingdom and Canada

David Cole and Stephen I. Vladeck

Extract

Sometimes comparative constitutional law is not merely academic. In Charkaoui v. Canada (‘Charkaoui I’), the Canadian Supreme Court engaged in a kind of comparative constitutional analysis in assessing whether Canada’s procedure for deporting foreign nationals on the basis of secret evidence was consistent with the guarantee of a fair hearing enshrined in the Canadian Charter of Rights and Freedoms. Noting that the United Kingdom (UK) employed ‘cleared counsel’ to mitigate the unfairness of the process in similar circumstances, the Canadian Supreme Court held that Canada could, and therefore as a constitutional matter must, do more to ensure fairness. The Canadian Parliament then adopted a process, much like the UK’s, that authorized lawyers with security clearances to see the otherwise secret evidence and to challenge it on behalf of the affected party in closed proceedings. In this instance, the Canadian Supreme Court looked to the practice of another nation to inform its judgment about whether Canada had done all it could to minimize its compromise of fair trial principles in the name of protecting national security. In this chapter, we propose to engage in comparative borrowing for a similar purpose by examining the use of ‘cleared counsel’ in the UK, Canada, and the United States (US). An analysis of the ways in which these three countries are using secret evidence and cleared counsel in roughly similar contexts sheds critical light on the practices of each. In the end, our analysis maintains that none of the three democracies is doing all that it can to mitigate the costs

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