Roach, Kent --- "Managing secrecy and its migration in a post-9/11 world" [2013] ELECD 677; in Cole, David; Fabbrini, Federico; Vedaschi, Arianna (eds), "Secrecy, National Security and the Vindication of Constitutional Law" (Edward Elgar Publishing, 2013) 115

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 8

Section Title: Managing secrecy and its migration in a post-9/11 world

Author(s): Roach, Kent

Number of pages: 18

Abstract/Description:

Secrecy has emerged as a different type of legal and political problem since 9/11. Secrecy has always presented a threat to fairness and to transparent governance. Governments have always had an incentive to overclaim secrecy. Nevertheless, the post-9/11 focus on terrorism has changed the nature of the competing interests. In the Cold War era, secret information could generally remain secret forever so long as it was not leaked to the other side. Secret information was used to inform the strategic decisions of both sides and as a basis for removing suspected spies from a country or removing their security clearances. Such spies, however, were rarely prosecuted and they were not detained on the basis of secret evidence. Courts generally deferred to the government’s claims of secrecy and did not attempt to reconcile the competing values of secrecy and disclosure. Today, secrecy is more complex and challenging. In the immediate aftermath of 9/11, many democracies used secret evidence that was not disclosed to the detainee or the public to justify military and immigration detention. Such secret evidence is now used to justify targeting decisions under the US’s program for killing suspected terrorists with drones. The Security Council of the United Nations, as well as most domestic executives, use secret evidence to blacklist individuals and groups suspected of involvement in al Qaeda and the Taliban. Courts no longer blindly defer to governmental claims of secrecy. The creation of many new terrorist crimes designed to prevent terrorism means that what was once intelligence that could always remain secret