The dark side of counter-terrorism: arcana imperii and salus rei publicae

This Article examines the use of state secrecy by the advanced democracies during the post-9/11 era. The current trend consists of reliance on intelligence information to take measures that can seriously impair the fundamental rights of individuals, repeated claims of state secrecy before courts, and, in general, an evident drift towards ever greater security at the expense of personal freedoms and human rights. To what extent is this attitude consistent with democracy, and its related principles, such as transparency, political accountability, and proper judicial review? An adequate answer to this question requires an evaluation of the performance of institutional mechanisms of Western democracies aimed at scrutinizing the use of secrecy in order to avoid the considerable and disquieting risk of abuses, which can lead to the abridgment of human rights. These thorny issues are addressed by analyzing the approach of domestic and regional (namely the European Court of Human Rights) courts in some paradigmatic cases of extraordinary rendition, such as the El-Masri and Abu Omar cases. Extraordinary renditions are a paramount example of a controversial counter-terrorism practice, marked by a strong shift towards secrecy and at serious risk of resulting in a substantial denial of justice and perpetual concealment of wrongdoings by or on behalf of governments. The outcome of these cases illustrates the ineffectiveness of existing mechanisms aimed at overseeing secrecy and, therefore, suggests that the claim of secrecy should be reviewed carefully by domestic courts in order to fully vindicate human rights and uphold the rule of law.