State secrecy in the age of terror: the Italian case in a comparative perspective

Since the 9/11 attacks, Western democratic governments have often resorted to state secrecy in the fight against international terrorism to prevent access to information that, if revealed, could harm national security. However, in some circumstances, secrecy has been misused to shield wrongdoings (or rather crimes committed) by intelligence agents and other state officials. Some victims of such crimes brought judicial complaints, either to seek civil compensation for the rights violations they suffered or to hold their perpetrators criminally liable. Therefore, courts were called to review the use of secrecy, invoked to conceal gross human rights violations. This Chapter examines the practice of judicial review of the state secret privilege in counterterrorism operations. Although the main focus of this study is on Italy, the comparative scenario is taken into consideration too, including cases adjudicated by supranational courts, namely the European Court of Human Rights (ECtHR), and other domestic jurisdictions, specifically US courts. The analysis sheds light on judicial standards applied in state secrecy cases. The main claim is that domestic courts – with some relevant exceptions – frequently show excessive deference towards executive branches. As a result, basic principles of democracy are put under stress and even the praiseworthy approach that supranational courts, as the ECtHR, took in some decisions may not be enough to prevent future violations of human rights.