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 17: Global sanctions, state secrets and supranational review: seeking due process in an interconnected world

Federico Fabbrini


In the twenty-first century, the fight against terrorism has increasingly acquired a global dimension. States and international organizations have developed cooperative instruments to tackle the terrorist threat, notably through the adoption of administrative measures for freezing the assets of individuals and entities suspected of financing terrorism. The sanctions adopted at the global level have a profound impact on fundamental rights and not surprisingly courts in multiple jurisdictions – including in the supranational framework of the European Union (EU) – have been called upon to review their legality. In recent years, courts, especially in the EU, have begun taking seriously their task to protect core due process rights and have demanded that natural and legal persons subjected to global financial sanctions be provided with the evidence that assertedly justifies the restrictive measures against them. Despite their solicitude, however, EU courts have been confronted with a new challenge. Supranational and international institutions often do not have access to the evidence, which is possessed, and secretly held, mainly by the United States (US) – the country with the most sophisticated intelligence apparatus worldwide and that has been at the forefront of the global fight against terrorism. The purpose of this chapter is to explore the intricacies that arise from supranational review of global sanctions based on state secrets and to suggest ways in which due process for designated individuals and entities could be sought in our interconnected world. The chapter takes stock of the recent decision of the EU General Court (GC) in Kadi II

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