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How Difficult It Is to Control Abuses of the State Secrets Privilege

, by Fabio Todesco
The American Journal of Comparative Law has accepted a paper by Arianna Vedaschi, which highlights that control mechanisms of the state secrets privilege are largely ineffective both in parliamentary and in presidential democracies

Khalid El-Masri is a German citizen of Lebanese descent who, in 2003, was arrested by the Macedonian police, interrogated for 23 days and finally handed over to the CIA. He was transferred to Afghanistan, interrogated and tortured for four months at the infamous Salt Pit facility under the accusation of being contiguous to the al-Qaeda Hamburg cell that contributed to the organization of the 9/11 attacks. When the CIA realized that the wanted person was in fact named Khalid Al-Masri, they released El-Masri in Albania.

This story inspired the 2007 movie Rendition, with Jake Gyllenhaal, Reese Witherspoon and Meryl Streep and is now used – along with the story of Abu Omar - by Arianna Vedaschi (Bocconi's Department of Legal Studies) in her The Dark Side of Counter-Terrorism: Arcana Imperii and Salus Rei Publicae (forthcoming in The American Journal of Comparative Law, a tier-one journal that has accepted only a few works by Italian scholars in its 65-year history). The paper examines the institutional mechanisms of Western democracies to test the consistency of state secrets privilege with the rule of law.

After his release, El-Masri sued both the CIA and Macedonian government to no avail, because in both cases the state secrets privilege was opposed. In 2012 he turned to Strasbourg's European Court of Human Rights, which condemned Macedonia to compensate him for the abuses he had suffered. The paper compares the contentious approach on state secrets taken by domestic courts, including the Italian Constitutional Court and US Supreme Court, to the very different stance of supranational courts, such as the European Court on Human Rights, that has even ruled the existence of a right to historical truth.

"Democracies don't have to be suicidal", Prof. Vedaschi says, "and in many cases the state secrets privilege makes a lot of sense, but there is evidence that it is perused in order to cover mistakes and inefficiencies, and when this happens the mechanisms of political and judicial control are ineffective. The US Senate Report on CIA Detention Interrogation Program states that in 26 of the 119 analyzed cases people have been improperly detained. Stories such as El-Masri's are all too common".

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