Secrecy, National Security and the Vindication of Constitutional Law

Abstract

The book proposes an important collection of scholarly essays dealing with the broad area of secrecy and national security in the light of constitutional law. In particular, the authors analyze, from a comparative point of view, a number of critical legal and policy issues that relate to secrecy and its problematic relationship with a functioning constitutional democracy. The book is divided into five parts, each one examining the problem under a specific point of view: the first one focuses on the complicated interaction between secrecy and courts, with a particular focus on counter-terrorism policies in the United States, the United Kingdom and Germany. The second part focuses on legislative oversight of the state secrets privilege, analyzing the American and Canadian models as regards direct and indirect access to intelligence information, while offering a broader overview of the Italian secrecy legislation (and policy) and the role played by the Government, the Parliament and the Constitutional Court. The third part faces the widely debated and still unsolved problem of secrecy with regard to imprisonment and the deprivation of liberty. With 9/11 as a starting point, contributors deal with various approaches to secret evidence and preemptive (or incommunicado) detentions adopted by different countries such as Israel, the United Kingdom, Australia, the United States and Canada, stressing the vulnerability of constitutional values and principles at stake. Closely linked to the third part, the fourth one studies the effects of secrecy within criminal trials, with particular regard to the feasibility of such trials in case of terrorism charges, the widespread practice of anonymous testimony and the resort to special judges such as military commissions. The fifth and last part faces the impact of secrecy on administrative measures, with a focus on supra-national measures and European law, wondering how to preserve the due process of law within the delicate area of governmental and inter-governmental discretion. The book, as a whole, offers a complete and thorough collection of state-of-the-art scholarship on some of the most current topics of the constitutional debate.

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