Secrecy, National Security and the Vindication of Constitutional Law

'This is an important collection of scholarly essays that will illuminate positive legal developments and normative constitutionalist concerns in the expanding arena of secret government decisions. This book is indispensable reading for those concerned with constitutionalism, the rule of law and democracy as they bear on the tensions between secrecy and disclosure in government responses to terrorism.' --Vicki C. Jackson, Harvard University Law School, US'This book contains the broadest and deepest analysis of the legal and policy issues that relate to secrecy and national security on one hand, and the imperatives of a functioning democracy on the other. The broadest because it brings to bear materials from many countries, the deepest because it brilliantly explores a core problem of constitutional government.' --Norman Dorsen, New York University, US and President, American Civil Liberties Union, 1976-1991

Edited by David Cole, Professor of Law, Georgetown University Law Center, US, Federico Fabbrini, Full Professor of EU Law, School of Law and Government, Dublin City University, Ireland, Founding Director of the Brexit Institute and Dublin European Law Institute, and PI of the Jean Monnet Centre of Excellence REBUILD and Arianna Vedaschi, Full Professor of Comparative Public Law, Bocconi University, Italy

Contents: Foreword Martin Scheinin 1. Introduction David Cole, Federico Fabbrini and Arianna Vedaschi PART I: SECRECY AND COURTS 2. Terrorism and Security: Back to the Future? Lord Justice (retired) Stephen Sedley 3. Oversight of National Security Secrecy in the United States Stephen Schulhofer 4. Secrecy vs. Openness: Counterterrorism and the Role of the German Federal Constitutional Court Mindia Vashakmadze 5. Formalism and State Secrets Sudha Setty PART II: SECRECY AND LEGISLATURES 6. Direct and Indirect Access to Intelligence Information: Lessons in Legislative Oversight from the United States and Canada Kathleen Clark and Nino Lomjaria 7. Arcana Imperii and Salus Rei Publicae: State Secrets Privilege and the Italian Legal Framework Arianna Vedaschi PART III: SECRECY AND DETENTION 8. Managing Secrecy and its Migration in a Post-9/11 World Kent Roach 9. National Security, Secret Evidence and Preventive Detentions: The Israeli Supreme Court as a Case Study Shiri Krebs 10. Secrecy and Control Orders: The Role and Vulnerability of Constitutional Values in the United Kingdom and Australia Andrew Lynch, Tamara Tulich and Rebecca Welsh 11. Comparative Advantages: Secret Evidence and Cleared Counsel in the United States, the United Kingdom and Canada David Cole and Stephen I. Vladek PART IV: SECRECY AND CRIMINAL TRIALS 12. The Normalization of Anonymous Testimony Jason Mazzone and Tobias Fischer 13. Terrorists on Trial: An Open or Closed Case? Clive Walker 14. In/Visible Courts: Military Tribunals as Other Spaces Ori Aronson PART V: SECRECY AND ADMINISTRATIVE MEASURES 15. Administrative Counter-Terrorism Measures A Strategy to Circumvent Human Rights in the Fight Against Terrorism? Tuomas Ojanen 16. Secret Evidence in EU Security Law: Special Advocates before the Court of Justice? Cian C. Murphy 17. Global Sanctions, State Secrets and Supranational Review: Seeking Due Process in an Interconnected World Federico Fabbrini 18. Secrecy Regulation by the European Union Inside Out Deirdre Curtin 19. Concluding Remarks Justice (retired) Lech Garlicki Index