Arcana Imperii and Salus Rei Publicae: State Secrets Privilege and the Italian Legal Framework

This paper focuses on the state secrets privilege within the Italian legal framework. The Italian experience is particularly interesting because the state secrets privilege is specifically regulated by a law that has encompassed the principles decided by the Italian Constitutional Court. The first section examines the compatibility of the state secrets privilege with a democratic framework, while investigating the constitutional basis of the state secrets privilege according to the Italian Constitution. It also gives an account of the various scholarly stances on this issue. The second section analyzes the legislation on state secrets privilege, which has been partially amended by Law 133/2012 and more widely revised through Law 124/2007. The aim of the second section is to highlight Law 124/2007’s main innovations in relation to previous Law 801/1977 – approved thirty years earlier. The third section focuses on rulings of the Constitutional Court on state secrets, and criticizes the Court’s failure to fully carry out its oversight of the state secrets privilege. In my concluding remarks, I consider this failure of the Constitutional Court into a broader context and call for a change in the trend in the constitutional jurisprudence, in the direction of greater and more effective oversight by both the Constitutional Court and an autonomous body. Il paper è parte di un volume a cui hanno collaborato autori di grande prestigio internazionale. La premessa del volume è stata scritta da Martin Scheinin, Professor of Public International Law at the European University Institute and President of the International Association of Constitutional Law. Quando ha scritto la premessa Scheinin era UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. Le Conclusioni sono state scritte da Lech Garlicki, Professor of Constitutional Law and Judge at the European Court of Human Rights in Strasbourg. Tra gli autori del volume (più di 20 e tutti stranieri), si ricordano David Cole, Professor of Law at Georgetown University Law Center; Kent Roach, Professor of Law and Prichard Wilson Chair in Law and Public Policy, University of Toronto and former member of the research advisory committee of Canada’s Arar inquiry and former Director of Research (Legal Studies) of its Air India Inquiry; Stephen Schulhofer, Robert B. McKay Professor of Law at NYU; Stephen Sedley, Lord Justice (retired) of the Court of Appeals for England and Wales; Sudha Setty, Professor of Law at Western New England University School of Law; Mindia Vashakmadze, Professor of Law at the Institute of International and European Law, University of Göttingen; Steve Vladeck, Professor of Law at American University Washington College of Law e Clive Walker, Professor of Law at the Centre for Criminal Justice Studies, University of Leeds School of Law. Ed inoltre: Ori Aronson, Assistant Professor at Bar-Ilan University Faculty of Law; Kathleen Clark, John S. Lehmann Research Professor of Law at Washington University in St. Louis; Federico Fabbrini, Assistant Professor of European & Comparative Constitutional Law at Tilburg Law School; Tobias Fischer, J.D. candidate at Brooklyn Law School; Shiri Krebs, J.S.D. candidate at Stanford Law School.