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Cole, David; Fabbrini, Federico; Vedaschi, Arianna --- "Introduction" [2013] ELECD 670; in Cole, David; Fabbrini, Federico; Vedaschi, Arianna (eds), "Secrecy, National Security and the Vindication of Constitutional Law" (Edward Elgar Publishing, 2013) 1

Book Title: Secrecy, National Security and the Vindication of Constitutional Law

Editor(s): Cole, David; Fabbrini, Federico; Vedaschi, Arianna

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781953853

Section: Chapter 1

Section Title: Introduction

Author(s): Cole, David; Fabbrini, Federico; Vedaschi, Arianna

Number of pages: 10

Abstract/Description:

No issue more profoundly challenges the commitments of constitutional democracy than secrecy in government. Representative democracy and the rule of law both require transparency and accountability, and secrecy strikes at the heart of both values. When government officials engage in secret actions on behalf of the state, they generally cannot be held accountable to the people for whom they purportedly act. What does it mean to have a government under law if it can act in ways that are effectively immune from legal regulation? Moreover, when the government’s actions affect the life, liberty, or property interests of individuals, secret actions – or public actions justified on the basis of secret evidence threaten to undermine basic protections of procedural fairness. How can one defend oneself against a case that is not disclosed? At the same time, secrecy is essential to effective governance, nowhere more so than in the arena of national security. Even where national security is not at issue, much of the work government does occurs behind closed doors – including, for example, the deliberations of courts. If governance had to be conducted entirely in the open, it would be impossible to get candid advice, and thus most legal systems recognize the validity of privileges that keep confidential many of the internal discussions that inform government actions. Where the police are investigating crime, secrecy is also often essential, so as not to tip off those who may be under suspicion. When the crimes being investigated are not just any crimes, but crimes that seek to spread terror through the civilian population