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 13: Terrorists on trial: an open or closed case?

Clive Walker


Consistent with his ‘war on terror’ paradigm, President George W. Bush asserted that ‘it is not enough to serve our enemies with legal papers’. The resonant primary United Kingdom legal focus in the immediate aftermath of 9/11 was similarly weighted more towards executive intervention through detention without trial rather than court-based criminal prosecution. This vying between executive action and criminal prosecution in the UK never pitched as decisively in favour of executive action as in the US, and is now fading in British domestic law. Yet, the key question remains whether the traditions of openness, orality, and adversarial justice which are so revered by the common law world can be preserved within criminal litigation which heavily impinges on national security interests. The first section of this chapter will examine the foundations for the reinvigoration of the criminal justice paradigm in the years following the fading of executive interventions. This aspect posits that regular models of criminal justice should predominate in counter-terrorism. The second section will explore the salient implications for British criminal justice, particularly by probing the extent to which the delivery of criminal justice has remained ‘normal’ or whether elements of exceptionality have insinuated themselves into the criminal law or criminal processes, including, in particular, the role of undisclosed or secret evidence. The third section will reflect upon the future trends and implications. The then Home Officer Minister, Tony McNulty, stated in 2008 that ‘prosecution is – first, second and third – the Government’s preferred approach when dealing with suspected terrorists’

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