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 16: Secret evidence in EU security law: special advocates before the Court of Justice?

Cian C. Murphy

Extract

The aftermath of the Kadi judgment from the European Court of Justice (ECJ) has left jurists unpicking the many implications of the judgment for EU law. In its judgment the Court refused to defer to the UN Security Council’s decision to designate Mr. Kadi as an individual ‘associated with’ Osama bin Laden and Al-Qaeda. Instead, it held that the failure to respect Mr. Kadi’s due process rights rendered unlawful the EU implementation of the sanctions against him. This decision has been reinforced by the judgment of the General Court in Kadi II which dismissed the brief statement of reasons given to Mr. Kadi as insufficient to allow him to challenge the case against him. One of the more difficult questions the Court of Justice’s review of the asset-freezing sanctions raises is how, if at all, the Court might review the any evidence presented to it. This question will become more and more important in the coming years. At present the EU operates two systems of targeted sanctions against terrorism. Both systems rely on designations taken outside of the EU institutions. EU Regulation 881/2002 establishes a system of designation of those suspected of involvement with Al-Qaeda and the Taliban. Designation on this list effectively happens at UN level with the EU system merely implementing decisions of the UN 1267 Committee (a subcommittee of the UN Security Council).3 EU Regulation 2580/2001 establishes a separate system of designation wherein the EU lists individuals and entities based on decisions taken by ‘competent national authorities’.

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