The Dark Side of Counter-Terrorism: Arcana Imperii And: Salus Rei Publicae

ARIANNA VEDASCHI*
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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.
* Professor of Law at Bocconi University, Milan, Italy. Substantial work on this
Article was completed during my visiting fellowship at the Max Planck Institute for
Comparative Public Law and International Law, Heidelberg, Germany (October to
November 2016) and at Trinity College, Dublin, Ireland (January to July 2017). I am
grateful to both institutions for hosting me. I would like to thank Mark Hill, Jason
Mazzone, Tullio Scovazzi, and Christine Venter for their helpful suggestions. I am also
thankful to the anonymous reviewers of the American Journal of Comparative Law for
their useful comments on an earlier draft. For research assistance, I want to express
special gratitude to Chiara Graziani and Gabriele Marino Noberasco. Many thanks to
Felicia Caponigri for footnote editing.
† http://dx.doi/org/10.1093/ajcl/avy049
© The Author(s) [2018]. Published by Oxford University Press on behalf of the American
Society of Comparative Law. All rights reserved. For permissions, please
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877
878 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. 66
Introduction
The political and legal reaction to the latest terrorist attacks in

Europe, taken in conjunction with the findings of the report on the
Central Intelligence Agency (CIA)’s Detention and Interrogation
Program, released in December 2014 by the U.S. Senate Select
Committee on Intelligence,1 provide a good opportunity to take
stock of counter-terrorism measures enacted during the post-9/11
era in order to test the relationship between individual freedom and
collective security in Western democratic countries and, ultimately,
to establish whether the rule of law still holds or whether it has
been superseded by a permanent, though undeclared, state of
emergency.
Despite the magnitude of the ongoing terrorist threat, and with
the important exception of France,2 advanced democracies have not
formally resorted to emergency powers.3 In fact, during these stressful
1. Senate Select Comm. on Intelligence, 113th Cong., Committee Study of the

Central Intelligence Agency’s Detention and Interrogation Program, at exec. summary
(2014), www.fas.org/irp/congress/2014_rpt/ssci-rdi.pdf.
2. Here, the état d’urgence, regulated by Loi 55-385 du 3 avril 1955 relative à l’état
d’urgence [Law 55-385 of April 3, 1955 on the State of Emergency], Journal Officiel
de la République Française [J.O.] [Official Gazette of France], Apr. 7, 1955, p. 3479,
was declared in the immediate aftermath of the November 2015 attacks in Paris
through Décret 2015-1475 du 14 novembre 2015 portant application de la loi 55-385
du 2 avril 1955 [Decree 2015-1475 of November 14, 2015 for the Application of Law
No. 55-385 of April 3, 1955], J.O., Nov. 14, 2015, p. 21297. Then, it was extended until
July 2017 through Loi 2016-1767 du 19 décembre 2016 prorogeant l’application de la
loi 55-385 du 3 avril 1955 relative à l’état d’urgence [Law 2016-1767 of December 19,
2016 Extending the Application of Law No. 55-385 of April 3, 1955 Regarding the State
of Emergency], J.O., Dec. 20, 2016, texte n. 1. A proposal to constitutionalize the state
of emergency was presented as well, but then withdrawn in May 2016. See Olivier
Duhamel, Terrorism and Constitutional Amendment in France, 12 Eur. Const. L. Rev. 1
(2016). The état d’urgence ended in November 2017, when Loi 2017-1510 du 30 octobre
2017 renforçant la sécurité intérieure et la lutte contre le terrorisme [Law 2017-1510
of October 30, 2017 Reinforcing Internal Security and Anti-Terrorism Measures], J.O.,
Oct. 31, 2017, texte n. 1, entered into force.
3. From a comparative constitutional law perspective, two macro-models
of emergency powers can be identified: some constitutions remain silent on the
emergency issues while several others expressly contain rules in order to face times
of crisis. The vast majority of countries have adhered to the latter pattern. Within
this pattern, two sub-models can be traced: either emergency powers are embodied
in a very general clause or they are articulated in more detailed provisions. The
prototype of the former sub-model is Article 16 of the French Constitution, which
grants the President of the Republic extraordinary powers: in a series of situations
endangering the very existence of the nation, the head of state is empowered to take
all measures “required by these circumstances.” Notably, Article 16 neither specifies
the abovementioned measures exactly nor precisely lists allowed derogations of
personal freedoms. See 1958 Const. art. 16 (Fr.). Conversely, Spanish and German
constitutions are paradigms of the latter sub-model. They thoroughly regulate
special powers that differ depending on the type of peril. Particularly, the Basic
Law of the Federal Republic of Germany establishes different emergency legal
frameworks according to the degree of risk for public security (See, e.g., Grundgesetz
[GG] [Basic Law] arts. 115a (state of defense), 80a (state of tension), 35 (internal state
of emergency)). Likewise, the Spanish Constitution sets out diversified legal regimes
2018] THE DARK SIDE OF COUNTER-TERRORISM 879
times the overwhelming majority of them have preferred to use their

legislative powers by issuing ordinary legislation.4
However, this counter-terrorism legislation enacted within an

ordinary framework is exceptional in some ways. This means that,
as the examples discussed below will show, recent antiterrorist
measures proved to be so restrictive that, in spite of their formal
status as ordinary legal tools, they contain substantially exceptional
features, thus contributing to a blurring of the line between normalcy
and emergency. From a general comparative perspective, the raft
of legislative and administrative measures introduced in order to
prevent, combat, and repress international terrorism are characterized
by the severe restrictions that are placed on fundamental rights and
personal freedoms.5 This widespread “securitarian” approach is visible
in new arrest procedures, in legislation that extends the duration of
(Article 116: state of alarm, state of emergency, state of siege (also called martial law))
referring to three different situations of danger, which are described by a specific
law (i.e., Law on the State of Alarm, Emergency, and Siege (B.O.E. 1981, 4)). When
emergency regimes are regulated, constitutional derogations of personal freedoms
are explicitly listed and related to such regimes (see, e.g., Constitución Española
[C.E.] art. 55, B.O.E. n. 311, Dec. 29, 1978). Turning to the former macro-model, i.e.,
looking at constitutions that are silent about emergencies different from war (for
example the Italian Constitution), it is worth highlighting that neither limitations
nor derogations of individual rights are regulated in relation to times of crisis. Within
this model there are also partially silent constitutions, which, while not containing
specific rules on emergency, recognize the possibility of impacts on rights: according
to the U.S. Constitution, Congress may suspend the right of habeas corpus when
security needs require it. See Bruce Ackerman, The Emergency Constitution, 113
Yale L.J. 1029 (2004); Tor Ekeland, Suspending Habeas Corpus: Article I, Section 9,
Clause 2, of the United States Constitution and the War on Terror, 74 Fordham L. Rev.
1475 (2005); David L. Shapiro, Habeas Corpus, Suspension and Detention: Another
View, 82 Notre Dame L. Rev. 59 (2006).
4. See John Ferejohn & Pasquale Pasquino, The Law of Exception: A Typology of
Emergency Powers, 2 Int’l J. Const. L. 210 (2004); Michel Rosenfeld, Judicial Balancing
in Times of Stress: Comparing the American, British, and Israeli Approaches to the War
on Terror, 27 Cardozo L. Rev. 2079 (2006).
5. In order to convey the impact of the abovementioned measures introduced
after the tragic events of September 11, 2001 in both the United States and Europe,
it is sufficient to note that the British Anti-Terrorism, Crime and Security Act
(ATCSA) 2001, c. 24, was immediately branded as “the most draconian legislation
Parliament has passed in peacetime in over a century.” Adam Tomkins, Legislating
Against Terror: The Anti-Terrorism, Crime and Security Act 2001, 2002 Pub. L. 205,
205. Note that Part IV of the ATCSA, found to be inconsistent with Articles 5 and 14
of the Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights],
by the Law Lords, was repealed by the Prevention of Terrorism Act 2005, c. 2. The
ATCSA contained a particularly restrictive regime of deprivation of personal liberty
and the possibility of the expulsion of suspected terrorists from national territory.
Moreover, it discriminated against non-citizens. Furthermore, the United States’
immediate response to the 9/11 attacks was characterized by strongly repressive
provisions concerning mainly surveillance and search and seizure powers. These,
together with other controversial features, were the object of several Supreme Court
decisions. For a comparative overview of counter-terrorism measures, see Arianna
Vedaschi, À la guerre comme à la guerre? La disciplina della guerra nel diritto
costituzionale comparato 504–49 (2007).
pre-trial custody6 and increases the maximum statutory sentences for

terrorist-related offences,7 as well as in constraints on a suspect’s right
to a defense and in the relaxation of safeguards in deporting foreign

citizens.8 The same approach is evident in the introduction of ever-
looser rules governing imprisonment for suspected (or even potential)
terrorists, leading to extreme situations such as Guantánamo and the
torture carried out there (or in other detention facilities)9 as well as
the most controversial practices of extraordinary rendition (ER) and
targeted killing (TK).10
In this securitarian context, the use of secrecy has gradually
emerged in a particularly troubling way, especially because it has been
increasingly employed by the so-called mature democracies.11 In fact,
intelligence agencies, charged with the acquisition and evaluation of
6. It would appear highly questionable to extend the maximum limit of preventive
detention, as many legislators have done, in order to deal with terrorism; the most
important examples are the United Kingdom and France. In the United Kingdom,
preventive detention may reach twenty-eight days (the government sought an
extension to forty-two days). See House of Lords Select Comm. on the Constitution,
Counter-Terrorism Bill: The Role of Ministers, Parliament, and the Judiciary (Oct.
2008), www.official-documents.gov.uk/document/cm74/7482/7482.pdf. In France, the
garde à vue may be prolonged up to six days, in case of a serious danger of an
imminent terrorist attack against France or other countries. See Jean-Pierre Pochon,
La lutte antiterroriste en France: État des lieux, in Actes des Colloques: L’Europe
face au terrorisme 61 (Rodrigo Pintado ed., 2005), www.iris-france.org/docs/pdf/actes/
livre-terrorisme-FR.pdf; Dominique Strauss-Kahn, Il faut récrire la loi Perben, Le
Monde (Feb. 11, 2004), www.lemonde.fr/societe/article/2004/02/11/il-faut-reecrire-la-
loi-perben-par-dominique-strauss-kahn_352529_3224.html. See also Syndicat de la
Magistrature, Observations du Syndicat de la Magistrature sur la constitutionnalité
de la loi portant adaptations de la justice aux évolutions de la criminalité, 8 J’essaime
(Feb. 2004), www.syndicat-magistrature.org/IMG/pdf/jessaime8avril2004.pdf.
7. See recent Italian legislation: Decreto Legge 18 febbraio 2015, n.7, G.U. Feb.
19, 2015, n.41, converted with amendments into Legge 17 aprile 2015, n.43, G.U. Apr.
20, 2015, n.91.
8. See infra note 24. Some countries, indirectly or informally, permit classified
intelligence information to be used as evidence in courts, for example Germany; other
states’ legislation formally allows closed material procedures (CMPs), for example, the
United Kingdom and the Netherlands. See also infra notes 22 and 23.
9. Open Soc’y Justice Initiative, Globalizing Torture: CIA Secret Detention and
Extraordinary Rendition (2013), www.opensocietyfoundations.org/sites/default/files/
globalizing-torture-20120205.pdf.
10. Arianna Vedaschi, The Dark Side of Counter-Terrorism: The Argument for a
More Enlightened Approach Based on a Constitutional Law Paradigm, in Culture
of Judicial Independence in a Globalised World 94 (Shimon Shetreet & Wayne
McCormack eds., 2016); Arianna Vedaschi, Extraordinary Renditions: Esiste una
giustizia transnazionale?, 4 Diritto Pubblico Comparato ed Europeo [DPCE] 1255
(2013) [hereinafter Vedaschi, Extraordinary Renditions]; Arianna Vedaschi, Osama bin
Laden: L’ultimo Targeted Killing: Gli Stati Uniti hanno dunque la licenza di uccidere?,
3 DPCE 1196 (2011). See infra notes 28 and 29.
11. Eur. Parl. Ass. Rep., Dick Marty, Comm. on Legal Affairs & Human Rights,
Abuse of State Secrecy and National Security: Obstacles to Parliamentary and Judicial
Scrutiny of Human Rights Violations, Doc. No. 12714 (Sept. 16, 2011), http://assembly.
coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?fileid=12952 (noting Armando Spataro’s
contribution to a meeting in Tbilisi). For a synopsis of Mr. Spataro’s intervention,
see Eur. Parl. Ass., Comm. on Legal Affairs & Human Rights, Draft Minutes of the
Meeting Held in Tbilsi (Georgia) on 16–17 September 2010, Doc. No. AS/Jur (2010)
PV 06, at 2 (Sept. 22, 2010), http://assembly.coe.int/CommitteeDocs/2010/20100922_
meetingheldinTbilisi_E.pdf (quoting from Mr. Spataro’s statement that “[d]emocracy
was served best by the free circulation of information”).
information related to national security, have played a steadily more

central role in the implementation of counter-terrorism policies. It is
sufficient to mention the surveillance of the general public and the

expansion of the forms of control directed towards ordinary people,
far beyond those individuals suspected of having actually committed
crimes.12 Moreover, the use of intelligence information and the activities
of the intelligence services have indeed been critical factors in targeted
killing operations and also in extraordinary rendition programs.
In addition, during the post-9/11 era, all governments of Western
countries have repeatedly invoked state secrecy13 before domestic
courts, especially when controversial practices such as extraordinary
renditions have been the focus of court proceedings. Consequently,
in the name of the salus rei publicae, possible abuses perpetrated by
government officials may potentially be concealed or even encouraged,
ensuring de facto impunity.
This Article focuses on this dangerous trend: the wide use of
state secrecy in the name of national security. As a result, security
not only absolutely predominates over all other concerns, but it also
limits personal freedoms and human rights without any proper
12. Arianna Vedaschi & Valerio Lubello, Data Retention and Its Implications
for the Fundamental Right to Privacy: A European Perspective, 20 Tilburg L. Rev.
14, 15 (2015) (also presented at the workshop “Constitutionalism Across Borders
in the Struggle Against Terrorism,” organized by the International Association of
Constitutional Law (IACL) at Harvard Law School, Cambridge, Massachusetts, March
5–6, 2014).
13. The use of secrecy takes different forms and terminology depending on
jurisdictions. In the United States, secrecy claims in civil proceedings are dealt
with through the Reynolds or Totten rules. The former is an evidentiary rule whose
application may lead to the dismissal of the case if no other evidence beyond that
protected by secrecy is available; the latter is an absolute bar to litigation. See infra
Part IV for further discussion on this distinction. The phrase “state secrets privilege”
usually indicates application of the Reynolds rule, even if—in some cases—it is used
more generally to refer to secrecy doctrines in the United States (the latter approach
is the one adopted by this Article). In U.S. criminal proceedings, a legislative model
applies and, according to the Classified Information Procedures Act, 18 U.S.C. app. 3,
§§ 1–16 (2006), in some cases the lawyer of the accused, if security cleared, can
access sensitive materials. See Miiko Kumar, Protecting State Secrets: Jurisdictional
Differences and Current Developments, 82 Miss. L.J. 853, 875 (2010); Edward C. Liu
& Todd Garvey, Cong. Research Serv., R41742, Protecting Classified Information
and the Right of Criminal Defendants: the Classified Information Procedures Act 3
(2012). In the United Kingdom, the concept of public interest immunity is close to
that of the state secrets privilege, since it may prevent the case from being heard
if it is not possible to rely on other evidence; however, over the years it has been
interpreted as leaving a more substantial role for courts in evaluating the grounds
for the claim of privilege. See Sudha Setty, National Security Secrecy: Comparative
Effects on Democracy and the Rule of Law 87–103 (2017); Steven D. Schwinn, State
Secrets, Open Justice and the Criss-Crossing of Privilege in the United States and the
United Kingdom, 29 L’Observateur des Nations Unies 171 (2010). In civil law countries,
such as Italy, the use of secrecy is regulated by statutory provisions, using less-specific
terms and establishing procedures to be employed, should a party raise a secrecy claim
within a trial. See Arianna Vedaschi, Arcana Imperii and Salus Rei Publicae: State
Secrets Privilege and the Italian Legal Framework, in Secrecy, National Security and
the Vindication of Constitutional Law 95 (David Cole, Federico Fabbrini & Arianna
Vedaschi eds., 2013).
judicial review. In order to avoid the considerable and disquieting

risk of excessively impairing personal freedoms and human rights,
democracies have established institutional mechanisms aimed at

scrutinizing the use of state secrecy so as to test its consistency with
the rule of law. However, are such mechanisms actually effective? Do
they work in practice, as they should within a democratic framework?
The pro-secrecy drift described above can only be constrained and
thereby held to be consistent with democracy, and therefore with the
principles of transparency and accountability on which democracy is
based, if such mechanisms do work in practice.
The examination of two significant cases concerning the
controversial counter-terrorism practice of ERs will be instrumental in
answering this crucial question. Its answer implies consequences for
how the forms of government and the system of multi-level protection
of fundamental rights function in practice. I conclude that democracies
are not dealing satisfactorily with the secrecy issues that arise from
national security concerns. In fact, governments are oriented to a
de facto compression of fundamental rights, which includes a lack of
necessary checks and balances, such as proper judicial review.
This controversial approach is even more worrisome because it
is framed in a broader context, in which constitutional emergency
powers, and their accompanying guarantees, have not been triggered.
This happens not only in those countries whose constitutions are silent
on emergency matters,14 such as those of Italy and the United States,
but also in those countries whose constitutions contain provisions for
coping with times of crisis.15
Legislative emergency powers used by this vast majority of
countries are perhaps more flexible than constitutional emergency
powers. On the one hand, they seem better suited to dealing with the
current anomalous terrorist threat, but on the other hand, they risk
corrupting the ordinary legal system.16 In practice, when restrictions
of individual rights and limitations of personal freedoms are imposed
without an effective time limit, extraordinary rules are de facto
embedded into the ordinary legal system. During the post-9/11 era, in
order to combat an ongoing danger, counter-terrorism measures have
been renewed systematically. As a consequence, formally provisional
suspensions and restrictions of personal freedoms have become
substantially permanent.17
14. See supra note 3.

15. See supra notes 2 and 3.
16. See Ferejohn & Pasquino, supra note 4.
17. This happened in many national legal systems that have adopted legislation
containing so-called sunset clauses. These provisions set an expiry date for a law or a
part of it. Sunset clauses are intended to make emergency provisions temporary, thanks
to a mechanism of automatic end of their effectiveness, so as to avoid prolongation of
restrictive measures—beyond what is strictly necessary—and consequent normalization.
Against this background, I argue that courts should carefully

consider the balance between security needs and human rights, both
where the constitution is silent about emergency powers and where

such powers are expressly provided by the constitution, but have not
been triggered in favor of a normalization of emergency. In my opinion,
this normalization of emergency powers should require a stricter form
of judicial review in order to avoid abuses. In this light, the claim of
secrecy should be reviewed carefully.
The structure of this Article is as follows: after a brief theoretical
discussion on the complex relationship between secrecy and democracy,
which focuses on the issue of the compatibility of the former with
the latter, Part I will show how secrecy has characterized counter-
terrorism policies enacted by Western countries during the post-9/11
era. By highlighting the shift from renditions to justice to extraordinary
renditions, Part II will give a description of this controversial practice,
taken as a paramount example of the effects of secrecy on government
accountability. Parts III and IV will examine the application of the
state secrets claim in trials concerning ERs. In particular, Part III will
analyze, in some detail, the Abu Omar case. In this context, I will firmly
criticize the attitude of the Italian Constitutional Court, which showed,
in my opinion, excessive deference towards the Italian government.
This approach of self-restraint obstructs the Court’s ability to ensure
a legitimate use of secrecy and, consequently, is not consistent with
the rule of law or, ultimately, with democracy, which always requires
some sort of check on political power, particularly when fundamental
rights are at stake. In addition, Part IV will examine the El-Masri
case and will emphasize the contentious approach of U.S. domestic
courts, including that of the Supreme Court. Part V will highlight the
acquiescence of parliaments to the hypertrophic power of the executive
as regards secrecy used in the name of national security. By contrast,
Part VI will underline the different approach of the European Court of
Human Rights (ECtHR). In the El-Masri case, the ECtHR criticized a
wide use of state secrecy, especially where its use violated fundamental
human rights. However, the pivotal role of the ECtHR in affording a
On sunset clauses, see, e.g., Antonios E. Kouroutakis, The Constitutional Value of Sunset
Clauses 138–48 (2017); John E. Finn, Sunset Clauses and Democratic Deliberation:
Assessing the Significance of Sunset Provisions in Antiterrorism Legislation, 48 Colum.
J. Transnat’l L. 442 (2010); John Ip, Sunset Clauses and Counterterrorism Legislation,
2013 Pub. L. 74, 82. However, this original aim has often been undermined, since praxis
has shown that provisions subject to sunset clauses are commonly extended. Some of
the most important examples are the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of
2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), and the Prevention of Terrorism Act
2005, c. 2 (Eng.). See infra note 20. Such extension may happen through subsequent
legislation or—and this is even worse in terms of impact on separation of powers and
safeguard for individual rights—executive decision. See Daphne Barak-Erez, Terrorism
Law Between the Executive and Legislative Models, 57 Am. J. Comp. L. 877, 894 (2009)
(arguing that provisions allowing renewal by reason of mere executive decision cannot
even be framed as proper sunset clauses).
fair protection to fundamental human rights is not enough to fully

punish gross violations and preserve the rule of law. The main reason
for this is that the judgments of the ECtHR do not concretely punish

the perpetrators of wrongful acts and crimes, they only compel states
to pay compensation to victims. Nevertheless, the ECtHR’s decision
should be applauded as it called for stronger respect for the right to
the truth, which cannot be obscured by the (ab-)use of secrecy. A brief
Conclusion will follow.
I. Secrecy vs. Transparency: A Comparative Overview of Post-9/11

Counter-Terrorism Measures
Secrecy and democracy appear—at first sight—mutually
exclusive. Indeed, democracy demands transparency, which should,
in theory, preclude secrecy. In fact, in democratic countries citizens
have the right to be informed about the decisions and actions taken
by their governments. Likewise, governments must be accountable
to the electorate for the actions they take on behalf of the people
who elect them. In other words, transparency is the prerequisite for
accountability of the executive, which ultimately derives its authority
from citizens. Therefore, democracy rests on the transparency of
governments’ political actions.
On this assumption, then, there should always be a strong link
within democratic countries between political accountability and
the transparency of actions of the executive and other public bodies.
Norberto Bobbio wrote that “democracy is power in public,” or in other
words, in a democracy, power must be visible to all citizens in order to be
subjected to scrutiny; thus, secrecy is a “broken promise of democracy.”18
In principle at least, democracy is the opposite of arcana
imperii, but this is not an absolute truth, since, in some exceptional
circumstances, democratic countries can legitimately require secrecy,
for example, when fundamental and collective interests, such as
national security, demand it. However, these situations can only
exist when secrecy is not used as an instrument to hide government
wrongdoings and when there is no alternative way to guarantee the
security of intelligence agents and the rights of victims. These reasons
are not evident in the cases I will examine. As a consequence, while
total incompatibility between state secrecy and democracy cannot be
envisaged, since under certain conditions the former can be tolerated
by the latter as a strict exception to the general rule of transparency,
secrecy should still be constrained by specific limits, in order to be
consistent with the rule of law and to preserve a democratic framework.
18. Norberto Bobbio, The Future of Democracy: A Defence of the Rules of

the Game 26–41 (Roger Griffin trans., Richard Bellamy ed., Univ. of Minn. Press
1987) (1984). See also Noberto Bobbio, La democrazia e il potere invisibile, 10 Rivista
italiana di scienza politica 181 (1980); Noberto Bobbio, Il potere invisibile, in Democrazia
e segreto (Marco Revelli ed., 2011).
In contrast to these desired limits, in the field of counter-terrorism

measures taken in the post-9/11 era, secrecy appears to have almost
become the rule, or at least a general tendency, in democratic countries.

In fact, a number of examples demonstrate that secrecy lies at the core
of the main post-9/11 counter-terrorism measures; moreover, from a
comparative perspective, the trend towards secrecy has emerged as
the norm, rather than the exception, in multiple Western countries.
First, intelligence agencies and security services have gained
an increasingly central role in data collection and data retention
activities aimed at preventing terrorist attacks.19 Such activities,
which are secret by their very nature, have mostly concentrated on
profiling20 individuals, rather than on discovering actual crimes.
The recent and widely debated “Datagate” scandals, brought to
light by the Wikileaks founder Julian Assange and the former
NSA analyst Edward Snowden, have revealed the existence of a
concealed intelligence network devoted to undertaking a systematic,
indiscriminate, and disturbing surveillance activity over (at least
potentially) every IT and TLC device21 in the world. Second, in a
number of countries, legislation has been passed to allow the use of
19. Federico Fabbrini & David Cole, Reciprocal Privacy: Towards a Transatlantic
Agreement, in Constitutionalism Across Borders in the Struggle Against Terrorism
169 (Federico Fabbrini & Vicki C. Jackson eds., 2016); Theodore Konstadinides, Mass
Surveillance and Data Protection in EU Law: The Data Retention Directive Saga, in
European Police and Criminal Law Co-operation 68 (Maria Bergstrom & Anna Jonsson
Cornell eds., 2014); Hal Roberts & John Palfrey, The EU Data Retention Directive in an
Era of Internet Surveillance, in Access Controlled: The Shaping of Power, Rights, and
Rule in Cyberspace (Ronald Deibert et al. eds., 2010); Christopher Kuner, Transborder
Data Flows and Data Privacy Law (2013); Michael Levi & David S. Wall, Technology,
Security and Privacy in the Post-9/11 European Information Society, 31 J.L. & Soc’y
194 (2004); Arianna Vedaschi, The European Court of Justice on the EU-Canada PNR
Agreement, 14 Eur. Const. L. Rev. 410 (2018); Ioanna Tourkochoriti, The Transatlantic
Flow of Data and the National Security Exception in the European Data Privacy
Regulation: In Search for Legal Protection, 36 U. Pa. J. Int’l L. 459 (2014). See also
sources cited supra notes 11 and 12.
20. Subsection 215(a)(1) of the U.S. PATRIOT Act states, in part, the following:
The Director of the Federal Bureau of Investigation or a designee of the
Director (whose rank shall be no lower than Assistant Special Agent in
charge) may make an application for an order requiring the production
of any tangible things (including books, records, papers, documents, and
other items) for an investigation to protect against international terrorism
or clandestine intelligence activities, provided that such investigation of a
United States person is not conducted solely upon the basis of activities
protected by the first amendment to the Constitution . . . .
See 50 U.S.C. § 1861(a)(1) (West 2001). This provision was reauthorized up to June 1,
2015. See Patriot Sunsets Extension Act of 2011, Pub. L. No. 112-14, 125 Stat. 216
(2011). Immediately after the expiry of this clause, on June 2, 2015, another act was
passed to substantively restore some expired parts of the PATRIOT Act, including
subsection 215(a)(1). See USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268
(2015).
21. Namely telephones, smartphones, computers, and so on.
intelligence information as evidence in court,22 which undermines

the right to an effective defense.23 Third, many countries have
introduced administrative (and also preventive) detention

procedures, widely based on secret information, and have developed
deportation procedures aimed at removing potentially dangerous
foreign citizens.24 Fourth, the set of measures aimed at preventing
the financing of terrorism also relies on intelligence information to
justify the freezing of assets and confiscation of property25 and is
22. This is the case of CMPs in the United Kingdom, Australia, Canada, and New
Zealand. CMPs allow the government to rely on classified evidence not disclosed to the
interested person, but only to a security-cleared counsel (a so-called special advocate).
They were introduced for administrative proceedings, such as those related to
immigration control for national security purposes; however, in some national contexts,
they extend to other proceedings as well. The United Kingdom is a paramount example,
since a statute passed in 2013 explicitly allows their use in civil proceedings. See Justice
and Security Act 2013, c. 18 (Eng.). See generally Alan W. Clarke, Rendition to Torture
128 (2012); Kent Roach, Secret Evidence and Its Alternatives, in Post 9/11 and the State
of Permanent Legal Emergency. Security and Human Rights in Countering Terrorism 179
(Aniceto Masferrer ed., 2012); Eur. Parl., Directorate-Gen. for Internal Policies, Study
for the LIBE Comm., National Security and Secret Evidence in Legislation and Before
the Courts: Exploring the Challenges (2014), www.europarl.europa.eu/RegData/etudes/
STUD/2014/509991/IPOL_STU(2014)509991_EN.pdf. With particular reference to the
extension of CMPs to civil proceedings in the United Kingdom, see Brice Dickson, Human
Rights and the United Kingdom Supreme Court 218 (2013); Home Affairs Section, Special
Advocates and Closed Material Procedures (2012), http://researchbriefings.parliament.
uk/ResearchBriefing/Summary/SN06285#fullreport (Alexander Horne’s working note
on the Justice and Security Bill for the House of Commons).
23. See David Jenkins, There and Back Again: The Strange Journey of Special
Advocates and Comparative Law Methodology, 42 Colum. Hum. Rts. L. Rev. 279 (2011);
Cian C. Murphy, Counter-Terrorism and the Culture of Legality: The Case of Special
Advocates, 24 King’s L.J. 19 (2013); J. Sullivan, Comment, Closed Material Procedures
and the Right to a Fair Trial, 29 Md. J. Int’l L. 269 (2014).
24. For example, in Italy, Decreto Legge 27 luglio 2005, n.144, art. 3, G.U. July 27,
2005, n.173, converted into Legge 31 luglio 2005, n.155, G.U. Aug. 1, 2005, n.177,
authorizes the Minister of the Interior (or, upon his delegation, the prefect of the
concerned province) to issue executive deportation orders against foreign citizens
“whose stay in the territory of the Republic may anyhow facilitate terrorist
organizations or activities, even of international nature.” L. n.144/2005 (translated
by author). Deportation orders can be challenged before administrative courts, but
their execution cannot be suspended while awaiting the judgment. In the United
Kingdom, subsection 97(1)(a) of the Nationality, Immigration, and Asylum Act 2002,
c. 41, authorizes the Home Secretary to issue deportation orders against individuals,
certifying that such a decision was taken in the interest of national security. The
Crime and Courts Act 2013, c. 22, restricted the availability of in-country suspensive
appeals against deportation orders, which must be executed pending appeal if the
same Minister further certifies that they would not breach the United Kingdom’s
obligations under the European Convention on Human Rights. On the United States,
the United Kingdom, and Australia, see Denise L. Gilman, Realizing Liberty: The Use
of International Human Rights Law to Realign Immigration Detention in the United
States, 36 Fordham Int’l L.J. 243, 246 (2013); Katherine J. Nesbitt, Preventative
Detention of Terrorist Suspects in Australia and the United States: A Comparative
Constitutional Analysis, 17 B.U. Pub. Int’l L.J. 39 (2007); Matthew C. Waxman,
Administrative Detention of Terrorists: Why Detain, and Detain Whom?, 3 J. Nat’l
Security L. & Pol’y 1 (2009).
25. For a comprehensive analysis of the Kadi case, a paramount example of the
blacklist system, see Matej Avbelj et al., Kadi on Trial: A Multifaceted Analysis of
the Kadi Trial (2014); with a specific focus on the relationship between the UN and
EU legal systems, see Giacinto della Cananea, Global Security and Procedural Due
Process of Law Between the United Nations and the European Union: Yassin Abdullah
Kadi & Al Barakaat International Foundation v. Council, 15 Colum. J. Eur. L. (2009).
completely lacking in any form of effective oversight, of either how

the information was gathered or of its contents.26
However, the most important examples of secrecy applied to the

fight against international terrorism are certainly represented by
targeted killings and extraordinary renditions. The former practice,
as is widely known, consists in the physical elimination of suspected
terrorists, targeted overseas by means of airstrikes or (more rarely)
clandestine ground operations.27 Decisions on whether to act against
suspected terrorists rely, once again, on secret intelligence dossiers
and are left entirely to the will (without any accountability) of the
executive branch. For these reasons, some scholars regard targeted
killings as preventive extra-judicial executions, in overt violation
of the right to life and to due process,28 when TKs are committed in
26. This also characterizes some other administrative measures used in the

prevention of terrorism. One example is no-fly listing, which has recently been tightened
up in some countries (for example, in Canada through the Counter-Terrorism Act, S.C.
2015, c. 20), since it entails secrecy in all its procedural phases and provides for poor
or inexistent judicial review. See Irina D. Manta & Cassandra Burke Robertson, Secret
Jurisdiction, 65 Emory L.J. 131 (2015). Similarly, passport revocation and exclusion
orders are often based on secret allegations by the government. For example, harsh
measures have been enacted by the U.K. legislature through the Counter-Terrorism
and Security Act 2015, c. 6, providing for travel bans in the form of both passport
revocation and temporary exclusion orders (TEOs), forbidding British citizens to
enter the national territory if they are suspected of involvement in terrorist activities
abroad. Moreover, in the United Kingdom, the Immigration Act 2014, c. 22, allows the
revocation of citizenship of naturalized British citizens not having dual nationality.
On the use of administrative measures to fight terrorism in the United Kingdom and
in other selected European countries, see Bérénice Boutin, Administrative Measures
Against Foreign Fighters: In Search of Limits and Safeguards (Int’l Ctr. for Counter-
Terrorism (ICCT) Research Paper, 2016), https://icct.nl/wp-content/uploads/2016/12/
ICCT-Boutin-Administrative-Measures-December2016-1.pdf.
27. Eur. Parl., Directorate Gen. for External Policies of the Union, Policy
Dep’t, Human Rights Implications of the Usage of Drones and Unmanned Robots in
Warfare 1 (2013), www.europarl.europa.eu/RegData/etudes/etudes/join/2013/410220/
EXPO-DROI_ET(2013)410220_EN.pdf; Eur. Parl., Directorate Gen. for External
Policies of the Union, Policy Dep’t, Creating Accountability? Recent Developments in
the US’s Policy on Drones 4–5 (2013), www.europarl.europa.eu/meetdocs/2014_2019/
documents/sede/dv/sede210915uspolicydrones_/sede210915uspolicydrones_en.pdf;
Gabriella Blum & Philip B. Heymann, Laws, Outlaws and Terrorists (2010); Nils Melzer,
Targeted Killing in International Law 41 (2008); William C. Banks & Peter Raven-
Hansen, Targeted Killing and Assassination: The US Legal Framework, 37 U. Rich.
L. Rev. 667 (2003); Mary E. O’Connell, Adhering to Law and Values Against Terrorism,
2 Notre Dame J. Int’l Comp. L. 289, 293–304 (2012). See sources cited supra note 10 and
infra note 29.
28. With regard to the issue of targeted killings, see the report of the UN Special
Rapporteur on Extrajudicial, Summary or Arbitrary Executions, presented to the
fourteenth session of the Human Rights Council: Philip Alston, U.N. Human Rights
Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions: Addendum, U.N. Doc. A/HRC/14/24/Add6 (Mar. 28, 2010). Against the use of
the term “assassinations,” see David Kretzmer, Targeted Killing of Suspected Terrorists:
Extra-Judicial Executions or Legitimate Means of Defence?, 16 Eur. J. Int’l L. 171 (2005).
From a general perspective, see Sudha Setty, Country Report on Counterterrorism:
United States of America, 62 Am. J. Comp. L. 643 (2014); Matthew J. Machon, School of
Advanced Military Studies, Targeted Killing as an Element of U.S. Foreign Policy in the
War on Terror 15 (2006), https://fas.org/irp/eprint/machon.pdf. See also sources cited
supra note 10 and infra note 29.
countries that are not enemies of the United States, or even its allies.29
Likewise, extraordinary renditions30 involve secrecy from at least two
different points of view. First, extraordinary renditions use intelligence

information to identify the potential target. Second, an impenetrable
curtain of secrecy conceals these ER operations in their entirety, as
well as the sites where the suspected terrorists are held in custody.31
What is more, during the last thirteen years, the governments of
Western countries have invoked state secrecy extensively in order to
bar criminal proceedings or civil suits related to this controversial
counter-terrorism practice, leading to a continual conflict between
the need for national security and the safeguard of the rule of law. In
this respect, extraordinary renditions represent a useful case study:
they help us understand to what extent state secrecy can be tolerated
29. In fact, targeted killings have raised a number of challenging issues with
respect to their legitimacy and the applicable legal framework. While both the Bush
and the Obama Administrations seemed to rely on the global nature of the “war
on terror” and the newly established category of “unlawful enemy combatants,” in
order to support the legitimacy of their use of this practice overseas (even against
U.S. citizens), to date, no unanimous position has been reached by international
and constitutional law scholars on their lawfulness. If one considers terrorism as (a
particularly cruel form of) international organized crime, a criminal law model could
not allow any form of preventive extra-judicial execution of the suspected terrorist. If
one wishes to follow the U.S. approach to targeted killings, therefore applying the laws
of war (and the brand-new categories of “global battleground” and “unlawful enemy
combatants”), this practice still seems open to legal challenges under a number of
perspectives. Particularly, when targeted killings are performed within the territory of
an ally (such as Pakistan), without any previous notice or consent, the overt violation
of a third country’s sovereignty could entail an unjustified “act of aggression.” See,
arguing for the unlawfulness of this practice, Mary Ellen O’Connell, Unlawful Killing
with Combat Drones: A Case Study of Pakistan, 2004–2009, in Shooting to Kill:
Socio-Legal Perspectives on the Use of Lethal Force 263 (Simon Bronitt et al. eds.,
2012); Melanie J. Foreman, Comment, When Targeted Killing Is Not Permissible: An
Evaluation of Target Killing Under the Laws of War and Morality, 15 U. Pa. J. Const.
L. 921 (2013); O’Connell, supra note 27; Bryan D. Shekell, The Legality of the United
States’ Use of Targeted Killings, 57 Wayne L. Rev. 313 (2011); but cf. Joshua Bennet,
Exploring the Legal and Moral Bases for Conducting Targeted Strikes Outside of the
Defined Combat Zone, 26 Notre Dame J.L. Ethics & Pub. Pol’y 549 (2012). See also
sources cited supra notes 10 and 28.
30. Margaret L. Satterthwaite, The Legal Regime Governing Transfer of Persons
in the Fight Against Terrorism, in Counter-Terrorism and International Law: Meeting
the Challenges 589 (Larissa van den Herik & Nico Schrijver eds., 2013); Louis
Fisher, Extraordinary Rendition: The Price of Secrecy, 57 Am. U. L. Rev. 1405 (2008);
Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the
Rule of Law, 75 Geo. Wash. L. Rev. 1333 (2007); David Weissbrodt & Amy Bergquist,
Extraordinary Rendition and the Torture Convention, 46 Va. J. Int’l L. 585 (2006); David
Weissbrodt & Amy Bergquist, Extraordinary Rendition: A Human Rights Analysis, 19
Harv. Hum. Rts. J. 123 (2006); Suzanne Egan, Extraordinary Rendition and the Quest
for Accountability in Europe (Law, Criminology & Socio-Legal Studies, Univ. College
Dublin, Research Paper No. 05/2012, 2012). See also sources cited supra note 10.
31. Amnesty Int’l, Open Secret: Mounting Evidence of Europe’s Complicity in
Rendition and Secret Detention, AI Index EUR 01/023/2010 (Nov. 15, 2010). Under
President Obama, see Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 22, 2009); Press
Release, U.S. Dep’t of Justice, Special Task Force on Interrogations and Transfer
Policies Issues Its Recommendations to the President (Aug. 24, 2009), www.justice.gov/
opa/pr/2009/August/09-ag-835.html.
within a democratic society in order to test the relationship between

personal freedoms and security needs in the post-9/11 era.

II. The Practice of Renditions: The Historical Background
The above-affirmed assertion, that state secrecy is an exceptional
option, seems systematically incompatible with several counter-
terrorism measures enacted during the post-9/11 era, primarily with
the ER program. In order to provide the basis for the analysis that
follows, a brief general overview of this subject, i.e., the so-called
rendition program, is helpful.
In the United States, the expression “rendition to justice” has
been used to refer to the fight against terrorism since the 1980s. The
expression relates, in particular, to clandestine operations carried
out beyond U.S. jurisdiction by the CIA with the aim of capturing
people suspected of committing terrorist offences overseas in
order to bring them to trial in U.S. federal courts (i.e., to “render
them to justice”).32 Renditions have generally been used as a last
resort, and their sole purpose has been to avoid problems, namely
delays and the sort of resistance often encountered within normal
extradition procedures. In fact, many states, either due to their long-
standing non-extradition policies or to their ideological sympathy
with extremist organizations, have been unwilling to cooperate
with U.S. law enforcement agencies; other countries, as in the case
of so-called failed states and those affected by ongoing political
conflicts, are simply unable to provide effective support. In order to
deal with the aforementioned problems and with the overriding goal
of apprehending a suspected terrorist, National Security Directive
No. 207, issued by President Reagan in 1986, included renditions as
part of the wider set of counter-terrorism measures.33 To support this
type of operation, U.S. Administrations have repeatedly asserted
their jurisdiction over those criminal offences committed abroad
against U.S. citizens or affecting American interests, claiming their
right to arrest suspected criminals anywhere in the world and to
bring them to justice at home on American soil.
After their first appearance under the Reagan Administration
in the late 1980s, renditions continued throughout the 1990s under
32. Rendition to justice (also called “ordinary” rendition) implies that the

subject of the operation will be brought before a court of law, whereas “extraordinary”
rendition means that there may be no intention of bringing the subject to trial. For a
definition, see Juan Santos Vara, Extraordinary Renditions: The Interstate Transfer
of Terrorist Suspects Without Human Rights Limits, in Terrorism and International
Law 556 (Michael J. Glennon & Serge Sur eds., 2008). See infra Parts III–V for a fuller
discussion of this practice.
33. White House, Ronald Reagan, National Security Decision Directive No. 207
(Jan. 20, 1986), www.fas.org/irp/offdocs/nsdd/nsdd-207.pdf; J. Brent Wilson, The United
States’ Response to International Terrorism, in The Deadly Sin of Terrorism 173, 184
(David A. Charters ed., 1994).
Presidents George H.W. Bush34 and Bill Clinton.35 Indeed, under

President Clinton, renditions to justice started to gradually transform
into something quite different—a significant change in procedures and

aims marked the transition from renditions to justice (i.e., “ordinary”
renditions) to what are now commonly referred to as “extraordinary”
renditions.36 This new operational mode consists of apprehending
suspected terrorists within the territory of a foreign state, regardless
of its consent or cooperation, and transferring them to a third state
(other than the United States), where they are detained and tortured;
furthermore, these suspected terrorists may possibly be put on trial
with no credible guarantee for their psychological or physical safety.
Established as an exception under the Clinton Administration, this
modus operandi has become a standardized operating procedure since
September 2001, when the demand for greater security increased the
pressure on the executive branch and dramatically inhibited checks
and balances aimed at preventing abuses.
Within this altered context following the tragic events of 9/11,
renditions to justice became extraordinary, abandoning their original
purpose (i.e., to bring terrorist suspects to justice either in the United
States or in other countries) in order to serve the pressing needs of
34. National Security Directives (NSD), Bush Administration, 1989–93, Fed’n

of Am. Scientists, www.fas.org/irp/offdocs/nsd/index.html (last updated Oct. 19,
2012) (listing National Security Directive No. 77 as “classified”). The only unclassified
reference to its contents can be found in White House, William J. Clinton, National
Security Directive No. 39 (June 21, 1995), http://fas.org/irp/offdocs/pdd/pdd-39.pdf.
35. White House, William J. Clinton, Presidential Decision Directive No. 62 (May 22,
1998), www.fas.org/irp/offdocs/pdd/pdd-62.pdf. See Jane Mayer, The Dark Side 112 (2008);
Benjamin Wittes, Law and the Long War 26 (2008). See also Human Rights Watch, Black
Hole: The Fate of Islamist Rendered to Egypt (May 2005), www.hrw.org/reports/2005/
egypt0505/egypt0505.pdf. According to the then-CIA Director George Tenet, from 1986
to 2001, the United States successfully accomplished more than seventy rendition
operations, of which two dozen have taken place during the last four years. See Written
Statement for the Record of the Director of Central Intelligence Before the National
Commission on Terrorist Attacks Upon the United States (Mar. 24, 2004), http://
govinfo.library.unt.edu/911/archive/hearing8/9-11Commission_Hearing_2004-03-24.
pdf. See also George Tenet, Written Statement for the Record of the Director of Central
Intelligence Before the Joint Inquiry Committee (Oct. 17, 2002), https://fas.org/irp/
congress/2002_hr/101702tenet.pdf.
36. See supra note 32. To understand the scope of this change, we can refer to
two relevant examples: the Tal’at Fu’ad Qassim and Tirana Cell renditions, ordered
by President Clinton. In the first case, which happened in Bosnia, the CIA captured
suspected terrorist Tal’at Fu’ad Qassim, an Egyptian citizen who was granted asylum
in Denmark, and rendered him to Egyptian authorities. In the second case, U.S. officials
captured a group of suspected terrorists (the so-called Tirana Cell) in Albania and
also transferred them to Egypt. In both cases, the operations did not aim to bring
suspected terrorists to justice in the United States but rather to hand them over to a
third country, where it was assumed they would be tried, with nothing but vague and
bland assurances in respect to their fundamental rights (e.g., the ban on mistreatment,
violence, and torture) from the United States and from the Egyptian government.
See Ruth Jamieson & Kieran McEvoy, State Crime by Proxy and Juridical Othering,
45 Brit. J. Criminology 504, 517 (2005) (remarking on extraordinary rendition’s role
in enhancing the perception of suspects as enemies of the state by relegating them
beyond the reach of national and international jurisdiction).
intelligence agencies: gathering as much information as possible

without the constraints of U.S. constitutional guarantees.
Since 9/11, the purpose of renditions has shifted from punishing

past terrorist acts to preventing future terrorist attacks. In other
words, the counter-terrorism focus has moved from prosecution to
prevention.37 The prospect of prosecution in a court of law, either by
the United States or by a third country, has taken second place to
the main purpose of these operations, namely, detaining suspected
terrorists outside U.S. borders in secret detention facilities, regardless
of whether they will face trial38 and without rights or guarantees for
an indefinite period of time.39
Though secret by their very nature, extraordinary renditions
rapidly gained notoriety thanks to the detailed accounts of victims.40
37. The Obama Administration adopted a somewhat different approach, with the
purpose of ensuring higher standards in terms of respect for fundamental rights and
due process of law. A fundamental point of President Obama’s strategy was the closure
of Guantánamo Bay, ordered by means of Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan.
22, 2009), but the closure was never completed due to political resistance in Congress.
The rejection of torture as an interrogation technique was another of the key points
of President Obama’s electoral campaign, implemented by means of Exec. Order No.
13,491, 74 Fed. Reg. 4893 (Jan. 27, 2009). In particular, Exec. Order No. 13,491 refers to
“practices of transferring individuals to other nations,” recalling the need to avoid that
they “result in the transfer of individuals to other nations to face torture.” However, no
“definitive ban” on the practice of extraordinary renditions was achieved: see Robert
Johnson, Extraordinary Renditions: A Wrong Without a Right, 43 U. Rich. L. Rev.
1135, 1168 (2009); Greg Miller, Obama Preserves the Rendition Program, L.A. Times
(Feb. 1, 2009), http://articles.latimes.com/2009/feb/01/nation/na-rendition1; Louis Jacobs,
Extraordinary Rendition Officially Ruled Out, but Secrecy Makes Its Elimination Hard
to Prove, Politifact (Dec. 4, 2012), www.politifact.com/truth-o-meter/promises/obameter/
promise/176/end-the-use-of-extreme-rendition/. Furthermore, one must consider that an
executive order can be overturned by the successor of the President who enacted it, thus
it is potentially temporary by its very nature within the U.S. legal system. In general
terms, it must also be taken into account that a number of measures retained by the
Obama Administration (such as electronic surveillance) have an undoubtedly preventive
character. For further reference on Obama’s approach to terrorism, see Jessica Stern,
Obama and Terrorism, 94 Foreign Aff. 62 (2015).
38. Open Soc’y Justice Initiative, supra note 9. See also Amnesty Int’l, supra note 31.
39. The secret CIA detention facilities, so-called black sites, are located far away
from the United States and are ideally suited to the secret imprisonment and
interrogation of captured subjects. See President Bush’s Speech on Terrorism, N.Y.
Times (Sept. 6, 2006), www.nytimes.com/2006/09/06/washington/06bush_transcript.
html; Dana Priest, CIA’s Assurances on Transferred Suspects Doubted, Wash. Post,
Mar. 17, 2005, at A1; Dana Priest, Ex-CIA Official Defends Detention Policies, Wash.
Post, Oct. 27, 2004, at A21; Jeffrey Smith, Gonzales Defends Transfer of Detainees,
Wash. Post, Mar. 8, 2005, at A3; Under President Obama, see Exec. Order No. 13,491,
74 Fed. Reg. 4893; Press Release, U.S. Dep’t of Justice, supra note 31.
40. Unlike the policy of targeted killings, at first U.S. Administrations did not
publicly acknowledge the use of extraordinary renditions as an integral part of an
effective counter-terrorism strategy. Upon taking office, on January 22, 2009, President
Obama issued Exec. Order No. 13,491, 74 Fed. Reg. 4893, ordering a thorough review
of interrogation techniques used by U.S. federal officials against suspected terrorists.
The review was aimed at preventing torture and abuses, ensuring the application
of lawful procedures. Nonetheless, Attorney General Eric Holder decided to refrain
from bringing charges against CIA agents involved in torture and harsh interrogation
cases. See Scott Shane, No Charges Filed on Harsh Tactics Used by the CIA, N.Y. Times
(Aug. 30, 2012), www.nytimes.com/2012/08/31/us/holder-rules-out-prosecutions-in-cia-
interrogations.html. See also infra note 160.
However, a number of lawsuits brought against the United States (and

its allies) in federal courts have failed to result in a final conviction.
The Executive has firmly claimed the state secrets privilege and

has also asserted sovereign immunity for those involved,41 while the
Judiciary (with a few exceptions, promptly appealed and overturned)
has not taken any steps to challenge the legal basis for the Executive’s
systematic assertion of the state secrecy (see Parts III and IV). In
order to demonstrate this assumption, the following Parts will focus,
respectively, on two of the most significant cases concerning the use
of secrecy in ER proceedings: Abu Omar42 and El-Masri.43
III. The Abu Omar Case: The Self-Restraint of the Italian

Constitutional Court
In the Abu Omar case, the great deference of the Italian
Constitutional Court, which was called upon several times to resolve
disputes between the executive and judicial powers on the state secrecy
issue,44 is clear. Indeed, the way in which the Italian Constitutional
Court addressed this case is an example of its abdication of its role.
Mr. Osama Mustafa Hassan Nasr (alias Abu Omar), an Egyptian-
born imam based in a mosque in Milan, was the target of an ER
41. Micaela Frulli, Some Reflections on the Functional Immunity of State

Officials, in 19 The Italian Yearbook of International Law 91, 95–99 (Benedetto
Conforti et al. eds., 2009); Paola Gaeta, Extraordinary Renditions e immunità dalla
giurisdizione penale degli agenti degli stati esteri: Il caso Abu Omar, 89 Rivista di
diritto internazionale 126 (2016); Francesco Messineo, Extraordinary Renditions and
State Obligations to Criminalize and Prosecute Torture in the Light of the Abu Omar
Case in Italy, 7 J. Int’l Crim. Just. 1023 (2009).
42. Federico Fabbrini, Extraordinary Renditions and the State Secret Privilege:
Italy and the United States Compared, 2 Italian J. Pub. L. 255 (2011); Michele Nino,
The Abu Omar Case in Italy and the Effects of CIA Extraordinary Renditions in Europe
on Law Enforcement and Intelligence Activity, 78 Revue Int’l de droit pénal [RIDP] 113
(2007); Vedaschi, supra note 13; Arianna Vedaschi, Il segreto di Stato tra tradizione
e innovazione: Novità normative e recenti evoluzioni giurisprudenziali, 4 Diritto
Pubblico Comparato ed Europeo [DPCE] 978 (2012) [hereinafter Vedaschi, Il segreto di
Stato tra tradizione e innovazione].
43. Arianna Vedaschi, Globalization of Human Rights and Mutual Influence
Between Courts: The Innovative Reverse Path of the Right to the Truth, in The Culture
of Judicial Independence: Rule of Law and World Peace 107 (Shimon Shetreet ed.,
2014) [hereinafter Vedaschi, Globalization of Human Rights]; Vedaschi, Extraordinary
Renditions, supra note 10.
44. A situation known as a “conflict of allocation of powers” (conflitto di poteri).
Following Legge 11 marzo 1953, n.87, art. 37, G.U. Mar. 14, 1953, n.62 (It.) (translated
by author), “conflicts between branches of government shall be resolved by the
Constitutional Court provided that the conflict arises between bodies that have the
competence to express the final will of the branches of government they belong to”
and “whose competences are regulated by the Constitution.” A consequence of this
conflict resolution is that the Constitutional Court will declare the annulment of the
concrete act that provoked the dispute. This annulment will have an erga omnes effect.
In other words, for jurisdictional disputes consisting of conflicts between branches of
government, the Constitutional Court acts as arbiter by entering into the merits of the
case and resolving the dispute. See Giuseppe F. Ferrari, The Conceptual Definition of
the Constitutional Court in Italy, in The Culture of Judicial Independence: Rule of Law
and World Peace 154, 160 (Shimon Shetreet ed., 2014).
carried out in a joint operation by U.S. CIA agents and Italian military
intelligence (SISMI) officials in 2003. After two technical stops in
Aviano and at the U.S. airbase in Ramstein, Germany, Abu Omar was

transferred to Egypt where he was allegedly tortured and subjected
to degrading and inhumane treatment, as part of an interrogation
concerning his suspected membership in Al-Qaeda or in a similar
radical Islamic group.45
After a criminal investigation led by the public prosecutor of Milan
into Abu Omar’s abduction which lasted almost two years (2005–2006),
in 2007 a criminal trial against the U.S. CIA agents and the Italian
intelligence officers involved in Abu Omar’s kidnapping was heard
before the Tribunal of Milan. An appeal first before the Court of Appeal
and then the Supreme Court of Cassation followed.46 At every stage of
these criminal proceedings, secrecy was a controversial issue that saw
the President of the Council of Ministers (PCM)47 at odds with several
judicial authorities responsible either for the criminal investigation or
for presiding over the trial.48 In fact, at first the PCM complained that
some sealed material had been used as evidence in order to formulate
the official indictment against several Italian intelligence agents.
Subsequently, the same intelligence agents invoked state secrecy by
countering that they would not be able to defend themselves properly
due to the imposition of state secrecy on documents and information
useful to their defense. The invocation of secrecy by either defendants
or witnesses at the trial has always been confirmed by the PCM, the
only authority vested with this prerogative power.49
According to Italian law, when defendants (or witnesses) claim
that the disclosure of some material would harm national security in
45. Amnesty Int’l, Media Briefing, Italy: The Abu Omar Case, Index No. EUR
30/012/2009 (Nov. 4, 2009).
46. Cass., sez. V pen., 19 settembre 2012, n. 46340, Giust. Pen. 2013, III, 65
(summarizing judgment); App. Milano, sez III pen., 15 dicembre 2010, n. 3688, https://
bit.ly/2T1l0XH; Trib. Milano, sez. IV pen., 4 novembre 2009, n. 12428, https://bit.
ly/2T3d1sM.
47. Within the Italian parliamentary system, the PCM is the head of government
(and, internationally, he or she is often referred to as the Prime Minister). According
to Article 95 of the Italian Constitution, the PCM—who is not directly elected by the
people—“conducts and holds responsibility for the general policy of the government.
He ensures the unity of general political and administrative policies, promoting and
coordinating the activities of the ministers.” Art. 95 Costituzione [Cost.] (translated by
author). As the head of government, the PCM directs and coordinates the Council of
Ministers, a collegial body made up of all Italian ministers; in Italy, executive power is
vested in the PCM and Council of Ministers and is the expression of the parliamentary
majority.
48. For a description of these conflicts, see supra text accompanying note 44.
49. Legge 3 agosto 2007, n.124, art. 1, G.U. Aug. 13, 2007, n.187 (It.) (on Intelligence
System for the Security of the Republic and New Provisions Governing State Secrets).
L. n.124/2007 replaced Legge 24 ottobre 1977, n.801, G.U. Nov. 7, 1977, n.303, which
was adopted thirty years earlier to modify a number of articles of the Italian Code of
Criminal Procedure and following two decisions of the Italian Constitutional Court
(Corte Cost., 24 maggio 1977, n. 86; Corte Cost., 6 aprile 1976, n. 82. Text of the
cases is available at www.cortecostituzionale.it). For a commentary on this law, see
order to avoid answering the questions of the public prosecutor (who

is in charge of the inquiry) or the judge (presiding over the trial), the
public prosecutor or the judge must ask the PCM to confirm whether

secrecy exists in the evidentiary material. If the PCM denies the
existence of any secret (or lets the thirty-day deadline lapse without
making a statement), the public prosecutor or the judge may obtain
and use the information and proceed with the criminal investigation
or the trial. By contrast, if the PCM confirms that the requested
information is classified as state secret, the public prosecutor or the
judge may neither obtain nor use, directly or indirectly, the information
concealed by the privilege. Consequently, where classified material
is central to the criminal investigation, the case must be dismissed
“due to the existence of the state secret.”50 However, the proceedings
may continue should the public prosecutor or the judge find that the
classified materials are not essential or there is other evidence upon
which the criminal investigation or the trial may be based and thus
concluded.51
Whenever the Executive and the Judiciary cannot agree on
the secrecy issue (for example, if the public prosecutor or the judge
presiding over a criminal trial believes that the state secret has
not been confirmed by the PCM in compliance with the law52), the
Vittorio Grevi, Segreto di Stato e processo penale: Evoluzione normativa e questioni

ancora aperte, in Segreto di Stato e giustizia penale 77 (M. Chiavario ed., 1978);
Vittorfranco S. Pisano, The Italian Intelligence Establishment: A Time for Reform?, 21
Penn. St Int’l L. Rev. 263 (2002).The original text of L. n.124/2007 was amended over
time by the following acts. First, it was amended by Decreto Legge 16 maggio 2008,
n.85, G.U. May 16, 2008, n.114, converted with amendments into Legge 14 luglio 2008,
n.121, G.U. July 15, 2008, n.164; second, it was amended by Decreto Legge 1 luglio
2009, n.78, G.U. July 1, 2009, n.150, converted with amendments into Legge 3 agosto
2009, n.102, G.U. Aug. 4, 2009, n.102; third, it was amended by Decreto Legislativo 2
luglio 2010, n.104, G.U. July 7, 2010, n.156; lastly, it was amended by Legge 7 agosto
2012, n. 133, G.U. Aug. 10, 2012, n.186.
50. L. n.124/2007, arts. 41.3, 41.5, translation at www.sicurezzanazionale.gov.
it/sisr.nsf/english/law-no-124-2007.html. See also Codice di procedura penale [C.p.p.]
[Code of Criminal Procedure] art. 202.5 (It.).
51. L. n.124/2007, art. 41.6. See also C.p.p. art. 202.6. To this end, it must be
noted that the Constitutional Court has repeated time and again that “the reassertion
of the state secrecy” by the PCM may not “prevent prosecutors from investigating
crimes relating to the reported crime (notitia criminis) in their possession,” but may
only “forbid the prosecutors from acquiring and consequently using any elements or
evidence covered by secrecy.” However, this is often impossible for the judge. See Corte
Cost., 10 aprile 1998, n. 110, Foro it. I, 2357 (It.) (translated by author).
52. In particular, article 39.1 of L. n.124/2007 specifies that documents, information,
activities, and any other matter whose disclosure may jeopardize the integrity and the
independence of the Italian Republic, even with regard to international agreements
and relations with other nations, or harm the defense of the homeland and of those
institutions lying at the heart of the Constitution shall be classified as state secrets.
Lastly, article 39.11 of L. n.124/2007 expressly forbids placing the seal of state secrecy
on documents, information, or matters relating to acts of terrorism or acts that may
endanger the constitutional order or on facts constituting devastation and ransacking
(Codice Penale [C.p.] [Criminal Code] art. 285), Mafia-style criminal organization (art.
416-bis C.p.), political-Mafia exchange (art. 416-ter C.p.), and mass murder (art. 422
C.p.).
public prosecutor or the judge will raise a jurisdictional dispute

before the Constitutional Court. Conversely, should the PCM disagree
with the public prosecutor or the judge on the use of documents

or information that he or she considers to be secret, the PCM can
initiate a jurisdictional dispute before the Constitutional Court. The
Constitutional Court should then determine the legitimacy of the
state secret claim. If the decision to resort to secrecy is not deemed
legitimate by the Constitutional Court, the PCM may not assert the
privilege with reference to the same information or document and
the criminal procedure is (simply) resumed. By contrast, the Court
may resolve the dispute by confirming the legitimacy of the state
secret, in which case the public prosecutor or the judge may neither
obtain nor make use of (either directly or indirectly) any documents or
information that are classified as state secrets.
As mentioned at the beginning of this Part, several disputes
between the Executive and the Judiciary have been referred to the
Constitutional Court. The last of these disputes on the issue of secrecy
involved not only the public prosecutor and the judges of both the
Tribunal of Milan and of the Court of Appeal, but also the judges of the
Supreme Court of Cassation.53
A consistent endorsement of the position of the PCM54 is more
than evident in all the decisions of the Constitutional Court. First of
all, as mentioned above, the Constitutional Court recognized that the
decision to invoke secrecy is the exclusive competence of the PCM.55
53. Corte Cost., 19 febbraio 2014, n. 24, Foro it., 2014, I, 1020 (It.). See Alessandro
Pace, Le due Corti e il caso Abu Omar, 59 Giurisprudenza costituzionale [Giur. cost.]
389 (2014); Arianna Vedaschi, Il segreto di Stato resta senza giudice, 59 Giur. cost. 394
(2014) [hereinafter Vedaschi, Il segreto di Stato resta senza giudice]. See also Corte
Cost., 21 novembre 2011, n. 40 Foro It., 2011, I, 2930; Corte Cost., 3 aprile 2009, n. 106,
Foro It., 2009, II, 1657. See also Cass., sez. V pen., 19 settembre 2012, n. 46340, Giust.
Pen. 2013, III, 65. The Supreme Court of Cassation and the Constitutional Court
differed on the interpretation of state secrecy. See Adele Anzon, La Corte abbandona
definitivamente all’esclusivo dominio dell’autorità politica la gestione del segreto
di Stato nel processo penale, 57 Giur. cost. 534 (2012); Alessandro Pace, La Corte
di cassazione e i «fatti eversivi dell’ordine costituzionale,» 55 Giur. cost. 582 (2014);
Alessandro Pace, Sull’asserita applicabilità dell’imputato dell’obbligo di astenersi
dal deporre sui fatti coperti dal segreto di Stato e sull’inesistenza dei fatti eversivi
come autonoma fattispecie di reato, 57 Giur. cost. 526 (2012); Vedaschi, supra note
13, at 95; Vedaschi, Il segreto di Stato tra tradizione e innovazione, supra note 42;
Arianna Vedaschi, La Cassazione solleva il «sipario nero» calato dalla Consulta: il caso
Abu Omar si riapre, 6 Percorsi costituzionali 163 (2013) [hereinafter Vedaschi, La
Cassazione solleva il «sipario nero» calato dalla Consulta].
54. Corte Cost., n. 24/2014; Corte Cost., n. 106/2009. But cf. Corte Cost., 23
febbraio 2012, n. 40, Foro it., 2012, I, 1327.
55. Corte Cost., 24 maggio 1977, n. 86 (handed down for the first time by the
Court and then incorporated in L. n.124/2007); see also Corte Cost., 6 aprile 1976, n. 82.
Text of the cases is available at www.cortecostituzionale.it. See Tommaso F. Giupponi,
La riforma del sistema per la sicurezza della Repubblica e la nuova disciplina del
segreto di Stato, in Nuovi profili del segreto di Stato e dell’attività di intelligence 53
(Giorgio Illuminati ed., 2010); Giuseppe Scandone, Il segreto di Stato, storia, essenza
e la nuova definizione nella legge di riforma, in I servizi di informazione e il segreto di
Stato 415 (Carlo Mosca et al. eds., 2008).
Moreover, in its reasoning, the Constitutional Court stressed “the wide

discretionary quality and the essentially political nature”56 of such
a decision, which allows the PCM to single out the information that

must be classified in the interests of salus rei publicae. Then—and
this is the crucial point—the Court identified the constitutional
basis for secrecy in Articles 1, 5, and 52 of the Italian Constitution,
which protect the democratic framework, national unity, and the
independence of the nation as well as the sacred duty to defend
the homeland, respectively.57 Therefore, according to the Court,
the state secret defense is an “instrument aiming to protect
the salus rei publicae,” since it is linked with national security,
which is intended as “a community’s essential and insuppressible
interest.”58
The Court’s reasoning clearly acknowledges the importance of
secrecy to protect national security, which is intended as a collective
and general interest (i.e., the interest of the general community), not
as an interest of a political majority invoked to conceal wrongdoings
or abuses59 committed by intelligence officers. However, instead of
scrutinizing the state secrets claim in order to check the legitimacy
of its use, the Court recognized the “pellucid quality of absolute
predominance” inherent in the interest of security “over any other,
in that it affects . . . the very existence of the [s]tate.”60 Consequently,
other constitutional values are doomed to perish or recede when met
56. Corte Cost., n. 40/2012, ¶ 5 (translated by author).

57. See id.; Corte Cost., n. 106/2009, ¶ 3. Constitutional case law of the
1970s grounds the justification for secrecy in Article 52 of the Italian Constitution
(marginally Articles 87 and 126), and only then touches on Articles 1 and 5 of the
Italian Constitution, explicitly referring to a set of articles and not only one article.
Constitutional scholars are divided on the issue of the constitutional basis of the state
secrets defense. See Adele Anzon, Segreto di Stato e Costituzione, 41 Giur. cost. 1784
(1976) (arguing in favor of Article 52 of the Italian Constitution); Stefano Labriola,
Segreto di Stato, 41 Enciclopedia del Diritto 1031 (1989) (calling for Article 54 of the
Italian Constitution). Others see these provisions operating jointly to support secrecy
claims: see Paolo Barile, Democrazia e segreto, 1 Quaderni costituzionali [Quad Cost.]
29, 37 (2013); Giovanni Pitruzzella, Segreto. Profili costituzionali, 28 Enciclopedia
Giuridica 5 (1992). Alessandro Pace, L’apposizione del segreto di Stato nei principi
costituzionali e nella legge n. 124 del 2007, 53 Giur. cost. 1041 (2008) (holding that the
basis for state secrecy is Article 117.2(d) of the Constitution, which identifies national
security as within the exclusive remit of the national Parliament). See also Margherita
Raveraira, Segreto nel diritto costituzionale, 14 Digesto Italiano delle discipline
pubblicistiche 27 (1999); Paolo Caretti, Limiti costituzionali alla tutela del segreto di
Stato, 20 Democrazia e diritto 815 (1980). For a general overview, see Vedaschi, supra
note 13, at 97–98.
58. Corte Cost., n. 106/2009, ¶ 3 (translated by author).
59. Corte Cost., n. 40/2012; Corte Cost., n. 106/2009. See Adele Anzon, Il segreto
di Stato ancora una volta tra Presidente del Consiglio, autorità giudiziaria e Corte
costituzionale, 54 Giur. cost. 1020 (2009); Vittorio Fanchiotti, Il gusto (amaro) del
segreto, 54 Giur. cost. 1033 (2009); Fabrizio Ramacci, Segreto di Stato, salus rei publicae
e «sbarramento» ai p.m., 54 Giur. cost. 1015 (2009).
60. Corte Cost., n. 106/2009 (translated by author). See also Corte Cost.,
n. 40/2012; Corte Cost., 10 aprile 1998, n. 110, Foro it., I, 2357; Corte Cost., n. 86/1977.
with a question of national security.61 Nonetheless, according to the

Court, the PCM’s wide discretionary powers are limited solely to the
need to express the basic (or rather formulaic) reasons underlying his

decision to invoke state secrecy.
Furthermore, the settled case law of the Constitutional Court
excluded any judicial review of secrecy (i.e., the question of whether
and how secrecy should be applied by the PCM).62 Indeed, although
Law No. 124/2007 assigns the Constitutional Court the role of sole
reviewer of the state secret claim,63 the Constitutional Court has
itself circumscribed its own decision-making capacity on secrecy.
Ultimately, the Constitutional Court has abdicated its role by limiting
itself to an ascertainment simply of whether the authority invoking
state secrecy is the PCM and of whether some formulaic reasons have
been proffered.
Another passage of the Court’s reasoning, namely its overly
narrow interpretation of the prohibition against classifying
information relating to actions that may endanger the constitutional
order,64 is particularly troubling.65 In this regard, it is worth pointing
out the restrictive nature of the Court’s interpretation in its rulings
concerning the Abu Omar case. In fact, the Court deems it appropriate
that only those acts intended to “overthrow the democratic system
or the institutions of the Italian Republic,” i.e., those acts meant to
demolish “the overall democratic structure of the institutions,” should
be protected by the shield of secrecy.66 In other words, following the
Court’s reasoning, only actions specifically aimed at overthrowing
the government or at attacking the constitutional bodies would be
considered against the constitutional system (rectius, in the idea of the
Court, the “constitutional order,” ordine costituzionale). Likewise, the
Court ruled that a single event, albeit one as serious as the ER of Abu
Omar, may not constitute an act against the constitutional system.67
In so doing, the Court conflated the concept of the “constitutional
system” (ordinamento costituzionale) with that of the “constitutional
order” (ordine costituzionale), a broader concept mentioned in
article 39, subparagraph 11 of Law No. 124/2007. Consequently,
by interpreting the concept of the constitutional order in a narrow
61. Corte Cost., n. 40/2012. See Anzon, supra note 53; the works by Alessandro
Pace cited supra note 53; Tommaso F. Giupponi, «A ciascuno il suo»: Il segreto di Stato
di nuovo davanti alla Corte costituzionale, 2 Quad. cost. 404 (2012); Vedaschi, supra
note 13, at 95.
62. Corte Cost., n. 40/2012, ¶ 3; Corte Cost., n. 106/2009, ¶ 3.
63. Codice di procedura penale [C.p.p.] [Code of Criminal Procedure] art. 202.8
(It.); L. n.124/2007, art. 40.
64. For a more detailed description of this prohibition, see supra text accompanying
note 52.
65. See Corte Cost., n. 86/1977.
66. Corte Cost., n. 106/2009, ¶ 8.5 (translated by author). See also Corte Cost.,
n. 40/2012, ¶ 8.5.
67. Corte Cost., n. 106/2009.
way (as constitutional system),68 the Court accepted the assertion of

the state secret privilege over Abu Omar’s ER without considering
that the abduction, whose final outcome was effectively outsourced

torture committed by intelligence officers, violated human dignity and
other basic human rights protected by the first part of the Italian
Constitution, therefore undermining the human rights upon which
this constitutional order is based, and, in doing so, effectively violating
the constitutional order itself.69
To sum up, the judicial path of the Abu Omar case in Italy involved
seven different judgments, including two of the Constitutional Court,
and lasted more than seven years. Having started in February 2007,
the trial of first instance held before the Tribunal of Milan ended
in November 2009: twenty-three U.S. officials, including the then-
Director of the CIA in Italy, and two Italian agents were convicted for
taking part in the kidnapping of Abu Omar, while five high-ranking
officers of the Italian SISMI (including the then-Director of the
SISMI) were acquitted due to the claim of state secrets. In fact, they
maintained in court that they could not effectively defend themselves
without revealing classified information and the PCM confirmed that
information pertaining to the case involved state secrets.
Dissatisfied with the outcome of the trial, the public prosecutor
challenged the legitimacy of the PCM’s statement before the
Constitutional Court and filed an appeal in the Court of Appeal of
Milan. On March 11, 2009, the Constitutional Court confirmed the
legitimacy of the state secret claim; subsequently, on December 15,
2010, the Court of Appeal upheld the judgment of first instance,
increasing the sentence imposed on all twenty-three U.S. officials but
acquitting the Italian agents due to the state secrecy claim.
On September 19, 2012, considering the case on application
by the public prosecutor, the Supreme Court of Cassation quashed
the appeals judgment and ordered a new trial to be held before the
Court of Appeal. According to the Supreme Court of Cassation, a
proper interpretation of the judgment rendered by the Constitutional
Court on March 11, 2009, would have allowed the Court of Appeal to
prosecute the (previously acquitted) officers without violating or forcing
disclosure of any state secrets. Therefore, following the interpretation
set forth by the Supreme Court of Cassation, on February 12, 2013,
the Court of Appeal convicted the five Italian officers for taking part
in the abduction of Abu Omar.
68. Cass., sez. V pen., 19 settembre 2012, n. 46340, Giust. Pen. 2013, III, 65
(summarizing judgment); Vedaschi, La Cassazione solleva il «sipario nero» calato dalla
Consulta, supra note 53, at 163.
69. Alessandro Pace, I «fatti eversivi dell’ordine costituzionale» nella l. n. 801
del 1977 e nella l. n. 124 del 2007, in 3 Scritti in onore di Lorenza Carlassare 1117
(Giuditta Brunelli et al. eds., 2009); Arianna Vedaschi, Il segreto di Stato resta senza
giudice, supra note 53; see also the works by Alessandro Pace cited supra note 53.
However, the case was not closed: in fact, the PCM had
challenged the judgment of the Supreme Court of Cassation before
the Constitutional Court, maintaining that the judgment infringed

upon the PCM’s prerogative powers in the field of state secrecy. On
January 14, 2014, the Constitutional Court ruled once again in favor
of the PCM and annulled the judgment of the Supreme Court of
Cassation. On February 24, 2014, the Supreme Court of Cassation
finally acquitted the five SISMI officers and wrote the last word on
the Abu Omar case before Italian courts.
In brief, when state secrecy is legitimately claimed within a
criminal proceeding and, thus, the public prosecutor is barred from
using certain evidentiary material, the case has to be dismissed
according to Italian law. However, if the public prosecutor or the judge
presiding over the criminal trial believes that the secrecy invoked by
defendants regarding essential classified materials was not confirmed
by the PCM in compliance with the law, i.e., secrecy is not legitimately
asserted, a dispute (between judicial and executive powers) can be
raised before the Constitutional Court. In the Abu Omar case, at every
stage of the criminal proceedings, secrecy was a controversial issue
that caused disputes between judicial and executive powers, which
have always been decided by the Constitutional Court in favor of the
Italian government. As a result, while the U.S. CIA defendants were
convicted in absentia (by the Tribunal of Milan whose decision was
upheld by the Court of Appeal and finally even by the Supreme Court
of Cassation), for the same criminal offence, the Italian intelligence
agents were acquitted due to the assertion of state secrecy by the
PCM, confirmed by the Constitutional Court, without any effective
review of its legitimacy.
As will be discussed in the Conclusion of this Article, there are
a number of points in the Constitutional Court’s reasoning that
raise serious questions. However, it is the overarching result, which
in practice translates into the Court’s effective refusal to act as the
reviewer of the use of secrecy, that is most disturbing.70
70. The Court’s refusal has been firmly criticized by the ECtHR when it ruled
on this case. In fact, following the complaint lodged by Abu Omar and his wife, the
Court of Strasbourg, in the judgment Nasr & Ghali c. Italie, Eur. Ct. H.R. App. No.
4483/09 (Feb. 23, 2016), http://hudoc.echr.coe.int/eng?i=001-162280 [hereinafter
Abu Omar], while praising the in-depth and irreprehensible approach of the
Italian judiciary, severely criticized the way in which the Constitutional Court, as
well as the President of the Republic and the government, dealt with the issue. For
an analysis of this judgment, which can be considered the conclusion of the Abu
Omar affair, see Tullio Scovazzi, Segreto di Stato e diritti umani: Il sipario nero
sul caso Abu Omar, 4 Diritti Umani e Diritto Internazionale 157 (2016); Arianna
Vedaschi, State Secret Privilege Versus Human Rights: Lessons from the European
Court of Human Rights Ruling on the Abu Omar Case, 13 Eur. Const. L. Rev. 166
(2017).
IV. The El-Masri Case: The Deferential Approach of U.S. Domestic

Courts

The approach of U.S. courts to the El-Masri case is another
example of deference towards executive power that is of paramount
importance. In the El-Masri case, the misinterpretation of the state
secrets privilege (i.e., the misuse of the Reynolds doctrine) and its
de facto application as a bar to trial (as occurs under the Totten rule),
led to a substantial denial of justice that resulted, in the end, in a
manifest violation of fundamental rights.
In order to understand the complicated overlap between the
so-called Reynolds doctrine and the far more restrictive Totten rule,
it is useful to briefly recall the origins, nature, and rationale of these
two fundamental precedents. In United States v. Reynolds71 (the case
that crystallized the state secrets privilege or Reynolds doctrine), the
U.S. Supreme Court was asked to determine whether the U.S. federal
government—the defendant in a tort claim—could be rightfully
compelled to disclose classified documentary evidence, allegedly
containing military secrets. The case originated from an October 1948
aviation accident, known as the Waycross crash, that involved a
U.S. Air Force B-29 bomber: the aircraft, officially performing secret
tests of electronic equipment, suddenly crashed to the ground near
Waycross, Georgia, resulting in the death of six military personnel
and three civilian contractors. A lawsuit was filed under the Federal
Tort Claims Act by the widows of the contractors, seeking disclosure
of official reports related to the accident and payment of damages by
the U.S. federal government.72 The then-Secretary of the Air Force
refused to release the reports, claiming that they were privileged as
they contained military secrets, whose disclosure could be detrimental
to national security. However, both the trial court and the Court of
Appeals for the Third Circuit disregarded the privilege asserted by
the federal government and—given its failure to file the requested
reports—granted damages to the claimants.73 By a majority decision
(six in favor and three dissenting), the U.S. Supreme Court reversed
the judgment of the Court of Appeals and ordered a new ruling to be
issued by the trial court. In particular, the Supreme Court observed
that a “request for production” under Rule 34 of the Federal Rules
of Civil Procedure (FRCP)74 could not apply to documents protected
from disclosure by an evidentiary privilege such as military secret
and, as a consequence, could not lead to a directed judgment against
71. United States v. Reynolds, 345 U.S. 1 (1953).

72. For a reconstruction of the facts, as well as a comment on a subsequent
decision, see Danielle L. Nottea, The State Secrets Privilege: Distinguishing State
Secrets in the Age of Information, 42 Sw. L. Rev. 701, 706–07 (2013).
73. Brauner v. United States, 10 F.R.D. 468 (D. Pa. 1950); Reynolds v. United
States, 192 F.2d 987 (3d Cir. 1951).
74. Fed. R. Civ. P. 34.
the federal government under Rule 37 FRCP.75 According to the Court,

as the Federal Tort Claims Act made the FRCP applicable to lawsuits
brought in federal courts against the U.S. government, it included

respect for “privileges” commonly recognized as such in the law of
evidence (including state secrets).76 Following the Supreme Court’s
reasoning, invocation of the state secrets privilege by the federal
government acting as the defendant in a tort claim could neither
lead to a directed judgment in favor of the claimant party nor imply
the automatic dismissal of the same claim. Furthermore, the Court
clearly stressed the difference between the case in question and that
of a criminal trial, where invocation of evidentiary privileges by the
government seeking conviction would have required the dismissal of
the case.77
Therefore—pursuant to the Reynolds doctrine78—in cases where
the state secrets privilege is invoked by the federal government to
avoid the disclosure of classified documents, courts must perform a
three-step evaluation. First, the court must consider whether the
claim of privilege is procedurally admissible in the case at hand. The
privilege can only be invoked by the government itself, represented by
the head of the department or agency involved in the litigation, and not
by lower-ranking officials. This procedural rule serves to ensure that
the executive branch takes full responsibility for the secrecy claim,
since such an evidentiary privilege directly stems from the power
vested in the President of the United States (i.e., in the executive
branch) by the Constitution. Second, the court must carefully weigh
the interests protected by the privilege against the interests of the
claiming party in the disclosure of the classified documents. In order
to do so, judges do not need to have unlimited access to the classified
documents, however, they do need to be provided with all the necessary
elements in order to reasonably understand whether the requested
disclosure would risk exposing information that should remain secret
in the interests of national security. When the privileged materials are
(nearly) the only evidentiary element in a case, the judge must apply
a particularly strict scrutiny to the effective risk to national security
posed by disclosure. By contrast, if many other sources of evidence are
available, a weaker judicial scrutiny is permitted, since the claimant
75. Fed. R. Civ. P. 37.

76. Reynolds, 345 U.S. at 6.
77. Id. at 12:
Respondents have cited us to those cases in the criminal field, where it has
been held that the Government can invoke its evidentiary privileges only at
the price of letting the defendant go free. The rationale of the criminal cases
is that, since the Government which prosecutes an accused also has the
duty to see that justice is done, it is unconscionable to allow it to undertake
prosecution and then invoke its governmental privileges to deprive the
accused of anything which might be material to his defense. Such rationale
has no application in a civil forum, where the Government is not the moving
party, but is a defendant only on terms to which it has consented.
78. Id. at 9–11.
has other means of proving his or her case. Third, if the judge decides
to grant the privilege, the judge must establish whether the trial can
continue without the forced disclosure or whether the whole case must

be dismissed given the unavailability of the privileged information.
In Totten,79 the circumstances of the case were substantially
different, and the reasoning of the Supreme Court was somehow simpler.
The appeal court (then called the “Court of Claims”) dismissed a breach
of contract claim against the U.S. government and its judgment was
challenged before the Supreme Court: Mr. Totten, acting as the estate
administrator of the late William Lloyd, filed a contract claim against
the federal government alleging that the latter failed to pay a stipend
due to Mr. Lloyd under an espionage contract he had entered into with
President Abraham Lincoln. The claimant maintained that Mr. Lloyd
was directly engaged by President Lincoln (during the Civil War) to
travel behind enemy lines and report on the movements of rebel troops.
According to Mr. Totten’s claim, upon performance of these services,
Mr. Lloyd only received reimbursement of his expenses, and he was
never paid the agreed stipend of $200 per month. The Supreme Court
unanimously upheld the judgment of the Court of Claims and clearly
curtailed U.S. federal courts’ civil jurisdiction on espionage contracts on
the basis of their intrinsic secret nature. In the opinion of the Supreme
Court, “[b]oth employer and agent must have understood that the lips of
the other were to be forever sealed respecting the relation of either to the
matter,”80 given that secrecy is a necessary and implied condition in any
contract involving secret employment by the government, the disclosure
of which would violate the very essence of the agreement and potentially
compromise the performance of the contract, as well as potentially
endanger foreign relations and unduly limit the executive branch to fully
discharge its duties towards the nation. In the words of the Court:
It may be stated as a general principle that public policy
forbids the maintenance of any suit in a court of justice the
trial of which would inevitably lead to the disclosure of matters
which the law itself regards as confidential and respecting
which it will not allow the confidence to be violated. . . .
[R]eason exists for the application of the principle to cases of
contract of secret services with the government, as the existence
of a contract of that kind is itself a fact not to be disclosed.81
Clearly, what the Supreme Court did in Totten was establish a
justiciability doctrine (the so-called Totten rule),82 aimed at barring
79. Totten v. United States, 92 U.S. 105 (1876).

80. Id. at 106.
81. Id. at 107.
82. See Examining the State Secrets Privilege: Protecting National Security While
Preserving Accountability: Hearing Before the Senate Committee on the Judiciary,
110th Cong. (2008) (statement of Louis Fisher, Specialist in Constitutional Law); Todd
Garvey & Edward C. Liu, Cong. Research Serv., R41741, The State Secrets Privilege:
Preventing the Disclosure of Sensitive National Security Information During Civil
Litigation (2011).
any claim from being brought in U.S. federal court in relation to secret

contractual relationships and espionage contracts in particular. The
difference between this holding and the state secrets privilege should

be self-evident: as the Supreme Court observed in United States
v. Reynolds,83 the Totten rule applies in circumstances where the very
subject matter of the action (such as an espionage contract) cannot be
disclosed due to the existence of a secrecy bond. If this is the case, an
early dismissal “without ever reaching the question of evidence”84 is
necessary since any litigation pertaining to the said subject matter
would unduly interfere with the prerogatives of the executive branch
in performing its official duties.85 By contrast, the Reynolds doctrine
was established by the Supreme Court as an evidentiary privilege,
designed to prevent classified pieces of evidence from being disclosed
in court, rather than to radically exclude any chance of litigation.
In sum, the Totten rule was established with regard to contract claims,
where both parties know in advance (and agree on) the secret nature
of their relationship, which cannot be enforced in court as the subject
matter of litigation. As a justiciability doctrine, the Totten rule curtails the
jurisdiction of U.S. federal courts and requires that the case immediately be
dismissed. In contrast, the state secrets privilege was clearly established
by the Supreme Court as an evidentiary rule in relation to tort claims
(by means of judicial interpretation of the Federal Tort Claims Act in
conjunction with the FRCP) and does not exclude, per se, the possibility of
successful litigation of the claim, if it is possible to rely on other sources of
evidence without violating the privilege (and this was the case in United
States v. Reynolds, where testimonial evidence was, indeed, available).86
Over the last two decades (especially in the aftermath of the 9/11
attacks), U.S. federal courts have gradually shifted the application of
the state secrets privilege as originally established by the Supreme
Court and made the once-clear distinction between the Reynolds
doctrine and the Totten rule undefined and blurry. As the federal
government has widely invoked the state secrets privilege in order
to respond to tort claims, federal courts have increasingly granted
governmental motions to dismiss, on the sole basis of the privilege
and without engaging in any proper assessment of the possibility
of litigating the claims without forcing the government to disclose
classified documents or otherwise impairing national security.87 In
83. Reynolds, 345 U.S.

84. Id. at 11 n.26.
85. The Totten rule was reaffirmed with regard to CIA espionage contracts. See
Tenet v. Doe, 544 U.S. 1 (2005).
86. For a pellucid analysis of the difference between the two rules, see Brief of the
Constitution Project as Amicus Curiae in Support of Petitioners, Mohamed v. Jeppesen
Dataplan, Inc., 563 U.S. 1002 (2011) (No. 10-778).
87. See Horn v. Huddle, 636 F. Supp. 2d 10 (D.D.C. 2009); Edmonds v. FBI, 272
F. Supp. 2d 35 (D.D.C. 2003); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86
(D.D.C. 2003); but cf. ACLU v. NSA 438 F. Supp. 2d 754 (E.D. Mich. 2006) (rejecting the
government’s motion to dismiss a challenge against the NSA’s surveillance program
due to the alleged existence of state secrets), rev’d, 493 F.3d 644 (6th Cir. 2007).
so doing, federal courts have gradually transformed the state secrets

privilege from an evidentiary rule—aimed at preventing disclosure
of certain evidence—into a justiciability doctrine, aimed at excluding

a priori a whole subject matter from litigation, in a way that closely
resembles the Totten rule. However, while the rationale behind the
Totten rule is intended to bar trials whose subject matter is inherently
secret, the expansion of the Reynolds doctrine as developed by
U.S. federal courts results in a generalized bar to any trial that may
potentially involve classified information. This judicial attitude has
been strongly criticized by a number of scholars as a distortion of the
Supreme Court case law.88 Nevertheless, to date, the Supreme Court
has seemed unwilling to enforce the original Reynolds doctrine,89
according to which, “[b]ecause it is so powerful and can trample
legitimate claims against the government, the state secrets privilege
is not to be lightly invoked.”90
As referenced at the beginning of this Part, the security-oriented
attitude of U.S. federal courts and the substantial mutation of the
88. See Laura K. Donohue, The Shadow of State Secrets, 159 U. Pa. L. Rev. 77,
121–29 (2010); Edward J. Imwinkelried, The Effect of the Successful Assertion of the
State Secrets Privilege in a Civil Lawsuit in Which the Government Is Not a Party: When,
If Ever, Should the Defendant Shoulder the Burden of the Government’s Successful
Privilege Claim?, 16 Wyo. L. Rev. 1 (2016); Matthew Plunkett, The Transformation of
the State Secrets Doctrine Through Conflation of Reynolds and Totten: The Problems
with Jeppesen and El-Masri, 2 U.C. Irvine L. Rev. 809 (2012); Steven D. Schwinn,
The State Secrets Privilege in the Post-9/11 Era, 30 Pace L. Rev. 778 (2010); Jeremy
Telman, On the Conflation of the State Secrets Privilege and the Totten Doctrine, 3 Nat’l
Security L. Brief 1 (2012); Alexander Turner, Extraordinary Results in Extraordinary
Rendition, 69 SMU L. Rev. 559 (2016).
89. See Mohamed v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128 (N.D. Cal.
2008), rev’d, 563 F.3d 992 (9th Cir. 2009), amended and superseded by 579 F.3d 949
(9th Cir. 2009), reh’g granted, 586 F.3d 1108 (9th Cir. 2009), aff’d, 614 F.3d 1070 (9th
Cir. 2010) (en banc), cert. denied, 563 U.S. 1002 (2011). On this ruling, which can be
seen as a leading case on the matter in addition to El-Masri, see Benjamin Bernstein,
Over Before It Ever Began: Mohamed v. Jeppesen Dataplan and the Use of the State
Secrets Privilege in Extraordinary Rendition Cases, 34 Fordham Int’l L.J. 1400 (2011);
Erin E. Bohannon, Breaking the Silence: A Challenge to Executive Use of State Secrets
Privilege to Dismiss Claims of CIA Torture in Mohamed v. Jeppesen Dataplan, Inc.,
65 U. Miami L. Rev. 621 (2011); Michael Q. Cannon, Mohamed v. Jeppesen Dataplan,
Inc.: The Ninth Circuit Sends the Totten Bar Flying Away on the Jeppesen Airplane,
2012 BYU L. Rev. 407; Galit Raguan, Masquerading Justiciability: The Misapplication
of State Secrets Privilege in Mohamed v. Jeppesen—Reflections from a Comparative
Perspective, 40 Ga. J. Int’l Comp. L. 423 (2012); Janelle Smith, Jeppesen Dataplan:
Redefining the State Secrets Doctrine in the Global War on Terror, 45 U. S.F. L. Rev.1073
(2011); Sarah Topy, To Dismiss on the Pleadings or Not to Dismiss on the Pleadings:
Extraordinary Rendition and the State Secrets Doctrine Under the Reynolds Framework
in Mohamed v. Jeppesen, 80 U. Cin. L. Rev. 237 (2012). Similarly, the Supreme Court
refused to rule on the Arar case. See Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en
banc), cert. denied, 560 U.S. 978 (2010). On Arar, see Arianna Vedaschi, Extraordinary
Renditions: A Practice Beyond Traditional Justice, in Extraordinary Renditions:
Addressing the Challenges of Accountability 89, 94–98 (Didier Bigo, Elspeth Guild &
Mark Gibney eds., 2018); see also the discussion infra note 109. For a discussion on
Jeppesen, El-Masri, and Arar, see also Sudha Setty, Preferential Judicial Activism, 16
Berkeley J. Afr.-Am. L. & Pol’y 151, 153–56 (2015).
90. United States v. Reynolds, 345 U.S. 1, 7 (1953).
Reynolds doctrine from an evidentiary rule into a justiciability

doctrine very similar to the Totten rule were especially evident in the
El-Masri case.

Khalid El-Masri, a German citizen born in Kuwait to Lebanese
parents, was stopped by Macedonian border guards while entering the
Former Yugoslav Republic of Macedonia (Macedonia) from Serbia, in
December 2003, due to his travel documents’ alleged irregularities.
After being questioned, he was transferred against his will to Skopje
where he was compelled to remain locked in a motel room. There,
El-Masri was repeatedly interrogated by Macedonian officers (in a
language that was not his mother tongue) about his supposed links
with the 9/11 hijackers. During his unlawful detention in Macedonia,
he refused food for ten days in protest against the psychological
mistreatment to which he was being subjected. After twenty-three
days he was rendered to a “commando” of American officers (members
of the CIA) at the Skopje airport, where he was tortured (by means of
a special technique, called capture shock91) before being forcibly flown
to Afghanistan via Baghdad. There he was held in custody at the Salt
Pit (a brick factory in northern Kabul) for four months, where he
was repeatedly tortured and subjected to physical and psychological
mistreatment in order to obtain information on his supposed ties with
Al-Qaeda;92 furthermore, according to El-Masri’s account, a German
intelligence officer was involved in his enhanced questioning.
Unfortunately, it took four months for U.S. officials to comprehend
the plain truth of the situation: El-Masri’s abduction was nothing
but a case of mistaken identity. The victim’s name was similar to
Khalid Al-Masri, suspected of being a member of Al-Qaeda’s so-called
Hamburg Cell. In May 2004, El-Masri was released at night on a
91. “Capture shock,” described as a standardized procedure in a declassified CIA

memorandum released in 2004, is a process aimed at breaking prisoners’ will, inducing
a state of “learned helplessness and dependence,” conducive to effective interrogation.
“During the flight, the detainee is securely shackled and is deprived of sight and sound
through the use of blindfolds, earmuffs, and hoods” in order to “contribute to [his]
physical and psychological condition prior to the start of interrogation.” Several violent
techniques were envisaged by the memorandum, such as “walling” and stress positions.
The specific aim of the procedure can be synthetized in the use of both “physical and
psychological pressures in a comprehensive, systematic, and cumulative manner to
influence behavior, to overcome a detainee’s resistance posture, breaking their physical
and moral resistance.” Central Intelligence Agency, Background Paper on CIA’s
Combined Use of Interrogation Techniques (Dec. 30, 2004), www.thetorturedatabase.
org/files/foia_subsite/pdfs/DOJOLC001126.pdf. See Tullio Scovazzi, Considerazioni in
tema di segreto di Stato e gravi violazioni dei diritti umani, in Individuals Rights and
International Justice 885 (Gabriella Venturini & Stefania Bariatti eds., 2009).
92. In particular, information regarding his supposed ties with Muhammed Atta
and Ramzi Bin Al-Shibh. On the matter, see also Dana Priest, The Wronged Man, Wash.
Post (Nov. 29, 2006), www.washingtonpost.com/wp-dyn/content/article/2006/11/28/
AR2006112801810.html; Dana Priest, Wrongful Imprisonment: Anatomy of a CIA
Mistake, Wash. Post (Dec. 4, 2005), www.washingtonpost.com/wp-dyn/content/
article/2005/12/03/AR2005120301476.html; Scott Shane, German Held in Afghan Jail
Files Lawsuit, N.Y. Times (Dec. 7, 2005), www.nytimes.com/2005/12/07/world/europe/
german-held-in-afghan-jail-files-lawsuit.html.
deserted road in Albania, captured by Albanian guards, and finally

returned to Germany.93
El-Masri filed a complaint in the U.S. courts, but his case was

dismissed by both the Eastern District Court of Virginia and the Court
of Appeals on the basis of the state secrets doctrine.94
A brief analysis of the case is useful to understand how, according
to U.S. courts, national security should always prevail over other
interests and rights, even when this means denying an effective
judicial remedy to a victim of torture. In fact, although U.S. courts
admitted the possibility that a secret rendition program does exist,
and that El-Masri was involved as a victim, they affirmed that judicial
review by means of a civil suit remains prohibited by the state secrets
privilege.95
In addressing the legitimacy of the state secrets privilege, asserted
by the U.S. government in El-Masri v. Tenet,96 both the District Court
for the Eastern District of Virginia and the Court of Appeals for
the Fourth Circuit dismissed the case, upholding the government’s
assertion of the privilege. Federal judges have made extensive use (or,
perhaps, abuse) of the so-called Reynolds doctrine97 as described above.
According to the Reynolds doctrine, judges should start with an
assessment of the procedural fairness of the government’s assertion,
and then evaluate the legitimacy of the assertion in the case being
heard. Judges should then conclude with a prognosis on the feasibility
of the whole trial without forcing the government to disclose the
evidence it wishes to remain classified.
Both the District Court and the Court of Appeals stressed the
importance of the authority to assert the privilege, i.e., that it is
vested only in the executive branch. In particular, only the head of
the executive department or agency involved in the case at issue is
entitled to assert the state secrets privilege before the courts. Such a
procedural rule, in the opinion of the courts, is intended to guarantee
the direct responsibility of the executive branch on the assertion of the
93. El-Masri stated: “I don’t understand why the strongest nation on Earth believes
that acknowledging a mistake will threaten its security.” Khaled El-Masri, I Am Not a
State Secret, L.A. Times (Mar. 3, 2007), https://bit.ly/2Qv5f91. See also Scott Horton, The
El-Masri Cable, Harper’s Mag.: Browsings—The Harper’s Blog (Nov. 29, 2010, 5:23 PM),
www.harpers.org/archive/2010/11/hbc-90007831. For more details, see El-Masri v. The
Former Yugoslav Republic of Macedonia, 2012-VI Eur. Ct. H.R. 263 (summarizing the
facts).
94. El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006); El-Masri v. United States,
479 F.3d 296 (4th Cir. 2007). See Margaret L. Satterthwaite, The Story of El Masri
v. Tenet: Human Rights and Humanitarian Law in the “War on Terror,” in Human Rights
Advocacy Stories 535 (Deena R. Hurwitz et al. eds., 2009); Vedaschi, Globalization of
Human Rights, supra note 43.
95. With regard to state secrecy, see Secrecy, National Security and the Vindication
of Constitutional Law (David Cole, Federico Fabbrini & Arianna Vedaschi eds., 2013).
96. See El-Masri, 437 F. Supp. 2d at 535.
97. See United States v. Reynolds, 345 U.S. 1 (1953).
state secrets privilege and the proper weighing of the assertion itself,
which should not be invoked lightly.
In regards to El-Masri, the privilege was claimed and asserted by

the Director of the CIA (the executive agency directly involved in the
case) in two separate sworn declarations, one of these being classified
as for “judge’s eyes only” and the other being made public. According to
both courts, the assertion was correct from a procedural point of view,
since the Director of the CIA was indeed vested with the authority
to make such an assertion by serving as the head of an agency of the
Executive.
For the second step of the analysis, the federal judges in the
El-Masri case addressed the substantive legitimacy of the assertion
of the state secrets privilege by determining whether the information
for which the privilege was claimed qualified as a state secret. In
the words of the District Court, if asserted validly, the state secrets
privilege permits the government to “block discovery in a lawsuit of
any information that, if disclosed, would adversely affect national
security.”98 In particular, the possible harm that might result,
and against which protection is sought by invoking the privilege,
includes impairment of the nation’s defense capabilities, disclosure
of intelligence-gathering methods or capabilities, and disruption of
diplomatic relations with foreign governments.
According to both the District Court and the Appeals Court, judicial
scrutiny should be proportionate to the private interests at stake: if
the claim brought by the private parties seems to be based primarily
on the information that the Executive seeks to keep secret, the judges
should perform a closer review, possibly gaining access to that very
same information in order to assess its eligibility as a state secret. This
assumption should not, however, lead to a misunderstanding of the
core of judicial review of the state secrets privilege. According to the
courts, the privilege is and shall remain absolute, since it protects the
Executive’s constitutional prerogatives. No balance between national
security and other interests or rights (even the most important) can
be performed by judges: the safeguarding of that primary interest is
within the exclusive competence of the executive branch.
In short, judicial review should only assess whether the Executive’s
assertion can be deemed legitimate, given the specific interest that the
state secrets privilege is expected to protect (in other words, whether
the concealed evidence genuinely qualifies as a state secret according
to the law). Once they have carried out their scrutiny and ascertained
that the evidence genuinely qualifies as a state secret, judges should
halt the trial and uphold the government’s assertion without any
further inquiry or evaluation.
98. See Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983).
In El-Masri, the courts found for the government, on the basis that
the claim contained in the Director of the CIA’s sworn declarations
was a legitimate one. Curiously enough, however, both the District and

the Appeals Courts could not reveal, within the published judgment,
the reasoning underlying their decision. Such reasoning, as one can
easily understand, was mainly based on the sworn declaration labeled
“judge’s eyes only,” whose content could not be made public. Here, one
encounters a particular case of wholly circular public reasoning (which
requires a total and fideistic adherence to the courts’ reasonable
assessment), which represents the only viable solution for judges
who need to assess the legitimacy of the state secret claim relying
essentially on secret materials. It is impossible to go any further in the
evaluation of such a review’s constitutional legitimacy given that this
solution is the only way to overcome an otherwise insurmountable
obstacle.
In regards to the plaintiff ’s allegations, both courts conceded,
alongside public declarations made by top governmental officials, that
a clandestine rendition program and secret detention sites might in
fact exist. However, the federal judges also found the very assertion
of the state secrets privilege to be a legitimate one based on this
sheer possibility, since forcing the disclosure of evidence related to
such clandestine operations would have impaired national security
by revealing the plans, organization, and procedures of intelligence
agencies.
As part of the third step of the analysis, the judges needed to
evaluate whether the legal proceedings could continue without the
risk of revealing the privileged information. Considering the centrality
of the inadmissible evidence to the case, the District Court dismissed
the plaintiff ’s claim, considering a trial unfeasible.
This particular point represented the main focus of El-Masri’s
appeal. According to the plaintiff, the wide media coverage of the
alleged rendition program, and his case in particular, as well as the
existence of many official reports on extraordinary renditions, issued
by major supranational bodies such as the Council of Europe99 and
a number of nongovernmental organizations,100 could have allowed
the Court to proceed regardless of the evidence withheld by the
U.S. government. However, the Court of Appeals upheld the judgment
of the District Court, stressing that the judge’s evaluation was correct
99. Dick Marty, Alleged Secret Detentions and Unlawful Inter-State Transfers
Involving Council of Europe Member States, Doc. No. 10957, Parliamentary
Assembly, Council of Eur. (June 12, 2006), http://assembly.coe.int/nw/xml/XRef/
Xref-DocDetails-EN.asp?fileid=11527 [hereinafter Marty Report I]; Dick Marty,
Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe
Member States: Second Report, Doc. No. 11302, Parliamentary Assembly, Council
of Eur. (June 11, 2007), http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.
asp?fileid=11555 [hereinafter Marty Report II].
100. See Amnesty Int’l, Torture and Secret Detention: Testimony of the
“Disappeared” in the “War on Terror,” AI Index MR 51/108/2005 (Aug. 3, 2005).
based on the fact that it would not be feasible to hold a civil trial
without the risk of revealing evidence protected by the state secrets
privilege, and not on based on the abstract ability of information in

the public domain to support the plaintiff ’s claims. Furthermore, the
prosecution of the lawsuit would have forced the defendants to reveal
that very same secret evidence in order to raise an effective defense.
The self-evident misapplication of the state secrets privilege, as
it was set forth by the U.S. Supreme Court in Reynolds, is the most
disappointing part of the U.S. federal courts’ approach to the El-Masri
case, and to other cases involving ERs. As has been outlined above,
far from representing an absolute bar to trial, the Reynolds privilege
involves a careful evaluation—entrusted only to judges—of the
legitimacy of the U.S. government’s assertion and of the feasibility
of the trial itself, without forcing the disclosure of documents that
the government legitimately seeks to maintain as secret. Such an
evaluation, in the reasoning of the Supreme Court, should entail a
detailed assessment of the reasons that persuaded the government to
assert the privilege with respect to each specific document, to decide
whether (or not) the document at stake deserves to remain secret and,
if so, whether (or not) the trial could continue without forcing disclosure
of that document. By contrast, in El-Masri (and in other ER cases), the
U.S. government resorted to a blanket assertion of the state secrets
privilege, simply citing to the Reynolds precedent to prevent disclosure
of any information related to the case in court (regardless of whether
it could be definitely argued that each and every document concerning
the case was, indeed, so sensitive as to demand the strictest secrecy). As
illustrated above, by allowing such a misuse of the Reynolds precedent,
U.S. courts implicitly moved towards a general (mis)application of the
Totten rule, originally intended by the Supreme Court as something
very different from, and more circumscribed than, the state secrets
privilege.101 In fact, in barring the trial at its earliest stage, the Totten
rule was intended as a justiciability doctrine, in order to protect secret
contracts and agreements (often related to intelligence and espionage)
from public litigation. This is very different from the evidentiary
privilege developed by the Supreme Court in Reynolds, which should
properly apply in cases involving extraordinary renditions.
In conclusion, by confusing Totten with Reynolds (or rather by
applying Totten instead of Reynolds), U.S. domestic courts have adopted
a position of great deference to the executive branch, completely
disregarding the probative value of a wide range of information
that might already be in the public domain. It came, therefore, as no
surprise that the Supreme Court refused to hear the case in 2007.102
101. Totten v. United States, 92 U.S. 105 (1876). For further discussion, see Carrie
Newton Lyons, The State Secrets Privilege: Expanding Its Scope Through Government
Misuse, 11 Lewis & Clark L. Rev. 99 (2007); Plunkett, supra note 88.
102. El-Masri v. United States, 552 U.S. 947 (2007) (denying certiorari).
V. Extraordinary Renditions: A Practice Without Any Effective

Parliamentary Oversight

Both U.S. federal courts and the Italian Constitutional Court,
when faced with the thorny issue of secrecy, have called for the more
appropriate oversight of legislative power.103 In fact, in the El-Masri
case, the U.S. federal courts called for congressional oversight of state
secrecy claims by the executive branch during civil suits. Similarly, in
the Abu Omar case, the Italian Constitutional Court, when deciding
the legitimacy of the state secret claim (by the President of the Council
of Ministers), called for the involvement of the Italian Parliament.
It is worth noting that both Italian and U.S. courts called for the
effective oversight of representative assemblies of secrecy invoked
by their respective executive branches, even though their systems of
government (namely parliamentary in Italy, and presidential in the
United States) differ greatly.
Traditionally, at least with regard to parliamentary systems,
some form of parliamentary check exists on matters of state secrecy,
and this check can be traced back to the natural relationship between
the legislative and executive branches in a parliamentary system.
Therefore, in accordance with the Italian form of government,104
Italian law provides a parliamentary check on the assertion of state
secrecy to address any possible abuse. Because of its essentially
political nature, the outcome of this oversight (of the state secret
claim) may even result in the resignation of the Executive due to a
vote of no confidence. However, the Italian Parliament is not able to
modify the decision taken by the President of the Council of Ministers
on state secrecy matters, even when Parliament itself disagrees with
the reasons for asserting the state secret privilege. Thus, even when
subjected to scrutiny by Parliament, the President of the Council of
Ministers remains the sole keeper of state secrets.
Furthermore, the oversight of the Italian Parliament is not
enacted automatically: to be implemented, it requires a report by the
Parliamentary Committee for the Intelligence and Security Services
(COPASIR). In fact, this report may be submitted to the plenary
assembly of Parliament only if COPASIR—a political body presided
103. The U.S. District Court, while holding that the Judiciary must not scrutinize
decisions of the Executive in matters of state secrecy, affirmed that this oversight
belongs to the legislative branch. According to the Italian Constitutional Court,
“[i]t belongs to Parliament to scrutinize the way in which [the] President of the Council
of Ministers exercises his power to classify information.” Corte Cost., 3 aprile 2009,
n. 106, Foro It., 2009, II, 1657, ¶ 12.4 (It.) (translated by author).
104. It is common knowledge that in the Italian parliamentary form of government,
the Executive needs to obtain a vote of confidence from Parliament. With regard to
state secrecy, see Andrea Morrone, Il nomos del segreto di Stato, in Nuovi profili del
segreto di Stato e dell’attività di intelligence, supra note 55, at 2; Ugo Scarpelli, La
democrazia e il segreto, in Il Segreto nella Realtà Giuridica Italiana, Atti del Convegno
Nazionale di Roma, October 26–28, 1981, at 623 (Cedam ed., 1983).
over by a member of the opposition105—deems the assertion of state

secrecy unlawful.106 Only in this case will the matter be reported to
Parliament.107 However, as already stated, the decision of the President

of the Council of Minister on secrecy is, in any event, definitive
since Parliament cannot change this decision even if the assembly
disagrees with it. Consequently, the parliamentary check, when it
exists, is relatively weak. Therefore, within a parliamentary system,
the continuum existing between the executive (and its head) and the
legislative, i.e., its majority, does not guarantee an effective test on the
use of secrecy, especially when the question involves national security.
With specific regard to the Abu Omar case, for example, it should
be emphasized that no parliamentary inquiry, request for explanation
of the Abu Omar ER, or activation of an autonomous investigation
committee has occurred within the Italian Parliament.
Similarly, albeit in a very different system, the U.S. Congress has
not had any effective reaction to the systematic assertion of secrecy by
the executive branch during the post-9/11 era. First of all, following
the logic of the separation of powers system, no rigorous mechanism
of control by the legislative of the executive branch formally exists.
The assertion of secrecy belongs to the President (and the Executive);
since it is a competence that derives from constitutional presidential
prerogatives existing in the field of national security, there is no
statute that provides for any congressional control of secrecy matters.
Experience shows that the broad assertion of secrecy by the executive
branch in court has not met with any effective resistance from the House
of Representatives and the Senate. Several attempts to pass a bill to
regulate the use of secrecy in court have failed so that, consequently,
no specific statute exists.108 The U.S. Congress has not developed any
105. This political body is made up of ten Members of Parliament: five from the
Chamber of Deputies and five from the Senate. See Legge 3 agosto 2007, n.124, G.U.
Aug. 13, 2007, n.187, arts. 30 & 31 (It.).
106. In the attempt to reinforce this mechanism of oversight, Legge 7 agosto
2012, n. 133, G.U. Aug. 10, 2012, n.186, states that during a specific secret hearing the
President of the Council of Ministers must provide, at the request of the Chairman
of COPASIR, all useful information to allow the Committee to verify whether the
state secrets confirmation is lawful and legitimate. Vedaschi, Il segreto di Stato tra
tradizione e innovazione, supra note 42, at 999.
107. In no case can the government invoke secrecy when a majority of two thirds of
COPASIR’s members decide to investigate the operations of the intelligence services to
verify if these operations are in compliance with the law. See L. n.124/2007, art. 31.9, as
modified by L. n.133/2012, art. 6. Therefore, COPASIR must have the right to access all
the information and documentation in order to be able to proceed with its investigations.
It is worth noting that before this new L. n.133/2012 was enacted, COPASIR had to vote
unanimously in order to have access to the aforementioned information and documentation.
108. Several bills calling for the regulation of the use of secrecy have been advanced
in the Senate and in the House of Representatives, but none of these bills has been
enacted due to the strong opposition of the President, who holds these reforms to be
inconsistent with the constitutional prerogative of the President in the field of national
security. See Edward C. Liu, Cong. Research Serv., R4063, The State Secret Privilege
and Other Limits on Litigation Involving Classified Information (2009) (discussing R.984
(State Secret Protection Bill) and S.417 (State Secret Protection Bill)); Robert M. Chesney,
effective remedies nor any useful counter-actions to curb the systematic

invocation of secrecy by the U.S. government in ER litigation.109 While
the recent report on the CIA’s Detention and Interrogation Program110

illustrates an attempt to investigate secret governmental programs, this
belated effort remains weak and without any legal remedies.
Parliamentary oversight should be particularly careful and strict
due to the fact that, as mentioned above, neither the U.S. nor the Italian
constitution overtly grants the Executive extraordinary powers in
times of emergency. Nevertheless, scholars claim that these exceptional
powers have been implicitly vested in the U.S. President and the head
of the Italian government respectively, since the Executive is best
placed to address the threat in a time of crisis, responding quickly and
effectively.111 However, the governmental reaction remains within the
ordinary constitutional system and therefore should require interim
effective parliamentary oversight.
Legislative Reform of the State Secrets Privilege, 13 Roger Williams U. L. Rev. 443 (2008);
cf. Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the
Reynolds Case (2006). For a general perspective, see Amanda Frost, The State Secrets
Privilege and Separation of Powers, 75 Fordham L. Rev. 1931 (2007).
109. David Cole, Getting Away with Torture, 1 N.Y. Rev. Books 39 (2010); Fiona
de Londras & Fergal F. Davis, Controlling the Executive in Times of Terrorism:
Competing Perspectives on Effective Oversight Mechanisms, 30 Oxford J. Legal Stud.
19 (2010). For an overview of parliamentary mechanisms of oversight in a separation
of powers system, see Mark Tushnet, The Political Constitution of Emergency Powers:
Parliamentary and Separation of Powers Regulation, 3 Int’l J.L. Context 275 (2008);
Memorandum in Support of the United States’ Assertion of State Secrets Privilege,
Arar v. Ashcroft et al., C.A. No. 04-CV-249-DGT-VVP (E.D.N.Y. 2005), www.fas.org/
sgp/jud/arar-memo-011805.pdf. Some scholars, for example, David Cole, call for an
independent commission as Canada did in regards to the Arar case. In fact, the U.S.
Congress refused to take part in an inquiry started by the Canadian government to
investigate the ER of Arar. Maher Arar, a Canadian citizen who was born in Syria,
was the target of an ER carried out by U.S. CIA agents on the basis of (inaccurate
and wrong) information provided by Canadian intelligence services. After an extra-
judicial mediation, the Canadian government agreed to pay significant compensation
to Maher Arar to compensate him for his sufferings. See Julie Dubé Gagnon, The
Case of Detainees Tortured in the Name of National Security and the “War on Terror”:
Are They Entitled to Reparations?, 1 Notre Dame J. Int’l Comp. L. 157, 161 (2011);
Ctr. for Constitutional Rights, The Story of Maher Arar Rendition to Torture (n.d.),
http://ccrjustice.org/files/rendition%20to%20torture%20report.pdf; Press Release,
Prime Minister’s Office, Prime Minister Releases Letter of Apology to Maher Arar
and His Family and Announces Completion of Mediation Process (Jan. 26, 2007),
http://pmonews.blogspot.com/2007/01/news-release_116983684245653186.html.
For substitute justice in non-American courts, see Kent Roach, Substitute Justice?
Challenges to American Counter-Terrorism Activities in Non-American Courts, 5 Miss.
L.J. 907 (2013). See also Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism
163–69, 235–37, 436–38 (2011); Kent Roach, Uneasy Neighbors: Comparative
American and Canadian Counter-Terrorism, 38 Wm. Mitchell L. Rev. 1701 (2012).
110. Senate Select Comm. on Intelligence, supra note 1.
111. With regard to the U.S. President, some scholars maintain that his “inherent
powers” in times of crisis stem from the clause, contained in the U.S. Constitution,
which assigns to the President the role of “Commander in Chief ” of the armed forces
during war. See Louis Fisher, Presidential War Powers 12 (1995); Mark Tushnet, The
Constitution in Wartime (2005). Indeed, this interpretation can be traced back to the
theories of Alexander Hamilton. See Alexander Hamilton, First Letter of Pacificus
(1793–1794), reprinted in William H. Goldsmith, The Growth of Presidential Power:
A Documented History 398 (1974); but cf. Geoffrey R. Stone et al., Constitutional Law
In actual practice, the role of the legislative branch in checking

the use of secrecy, especially when it is used in counter-terrorism
operations, and specifically during the post-9/11 era, appears, if not

actually nonexistent, then extremely weak at best, regardless of the
form of government. As a result, this kind of political control cannot be
a guarantee against potential misconduct and abuses by intelligence
agencies or by executive power when secrecy is invoked.
VI. The Crucial Role of the European Court of Human Rights

At the national level, the mechanisms of both judicial and political
oversight are either excessively deferential or perilously weak. Although
the allegations concern gross violations of basic human rights, neither the
U.S. Supreme Court nor the Italian Constitutional Court has scrutinized
the legitimacy of the assertion of secrecy in ERs proceedings. In fact,
the U.S. Supreme Court has denied the writ of certiorari and the Italian
Constitutional Court has effectively abdicated its legally mandated role
as the exclusive judge of state secrecy. Consequently, at the national level,
secrecy exists when the executive branch decides that it exists, with the
absolute acquiescence of parliaments and without any effective judicial
review intended to test its legitimacy and consistency with the rule of law.
Secrecy may conceal possible misconduct (as in the Abu Omar
case), abuses, or simple mistakes (as in the El-Masri case) that demand
to be punished in mature democracies. In the aftermath of 9/11, the
victims of those abuses have failed to obtain any relief or reparation
at the national level in these mature democracies.
The multilevel system of protection of human rights seems to
provide a suitable solution to this disturbing situation of justice denied.
Once again, El-Masri proves a good case study.112 In July 2009,113 with
402 (2001). However, the U.S. Supreme Court has criticized the theory of inherent
powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Other
scholars endorse the so-called stewardship theory, according to which the President,
as a servant of the nation, can adopt any act that may benefit the nation itself, unless
the Constitution or the law set explicit prohibitions. See David Dyzenhaus, Intimations
of Legality and the Clash of Arms, 2 Int’l J. Const. L. 244 (2004). In general, on the
U.S. President’s emergency powers, see Justin De Plato, The Founders’ Reasons and
Justification for Presidential Emergency Power, in American Presidential Power and
the War on Terror: Does the Constitution Matter? 13 (Justin De Plato ed., 2015);
Kim L. Scheppele, Law in a Time of Emergency: States of Exception and the Temptations
of 9/11, 6 U. Pa. J. Const. L. 1001 (2004); Ekeland, supra note 3, at 1517.
112. This is especially evident in light of the many key points of the ECtHR’s
recent decision in the Nasr & Ghali case. See Abu Omar, supra note 70. Notwithstanding
some differences between the two judgments, the substantial character of the approach
is symbolic of the outstanding importance of the El-Masri decision.
113. It is worth noting that, pending the judgment before the Court of Appeals,
the so-called rendition program pursued by the United States and its allies became
a recognized and historical truth, thanks to the detailed report of the Parliamentary
Assembly of the Council of Europe and to the partial admissions made by President
George W. Bush. President Bush’s Speech on Terrorism, supra note 39. Condoleezza
Rice also explicitly acknowledged these rendition programs. Secretary Condoleezza
Rice, Remarks Upon Her Departure for Europe, U.S. Dep’t of State Archive (Dec. 5,
2005), www.state.gov/secretary/rm/2005/57602.htm. See Marty Report I, supra note 99.
assistance from the Open Society Justice Initiative, El-Masri lodged

a complaint114 against the Republic of Macedonia with the ECtHR,
seeking reparation for the torture and other cruel, inhumane, and

degrading treatments he was subjected to while detained in Macedonia
and Afghanistan.
Having clarified the facts, the ECtHR recognized a formal and
substantial breach of Article 3 (which prohibits torture and inhuman
treatment), Article 5 (which safeguards the right to liberty and
security), Article 8 (which protects private and family life), and
Article 13 (which guarantees the right to an effective remedy) of the
European Convention on Human Rights (European Convention).115
More specifically, with regard to Article 3, the ECtHR recognized
that, during his detention in the motel room at the Skopje airport and
(later) in Afghanistan, El-Masri suffered physical and psychological
violence, which should clearly be considered inhumane and prohibited,
thus representing a clear case of torture. According to the Court, the
Macedonian authorities must be held accountable for such a violation
of Article 3, given that Macedonian officers voluntarily and directly
inflicted psychological violence on El-Masri during his twenty-three-
day custody in the motel room, under their control, after having
kidnapped El-Masri and detained him “incommunicado” in conditions
of complete isolation. In the judges’ opinion, the Macedonian authorities
also bear an indirect responsibility for the mistreatment perpetrated
by U.S. agents both in Skopje and Afghanistan: Macedonian officers
did nothing to prevent El-Masri from being brutalized by foreign
agents on Macedonian soil under their legal jurisdiction. In fact, they
handed the victim over to the CIA, well aware that he would be flown
to a third country to face torture and further mistreatment.
From a procedural point of view, the ECtHR observed that the
Macedonian authorities, instead of conducting a complete and prompt
investigation to ascertain the facts and punish the culprits, simply
relied on a brief and incomplete report by the Ministry of Home
Affairs. Although the nature of the complaints lodged by El-Masri
with Macedonian prosecutors were detailed and serious, prosecutors
did not independently examine the circumstances of the case and
completely excluded the victim from their inquiry.
114. El-Masri v. The Former Yugoslav Republic of Macedonia, 2012-VI Eur. Ct.
H.R. 263.
115. Id.; Vedaschi, Globalization of Human Rights, supra note 43; Kai Ambos,
Violación de la Convención Europea de DDHH por la prática de las entregas
extraordinarias, 3 Zeitschrift für Internationale Strafrechtdogmatik 161 (2013);
Francesco Viganò, Prima condanna della Corte di Strasburgo in un caso di extraordinary
renditions, Diritto Penale Contemporaneo (Dec. 14, 2012), www.penalecontemporaneo.
it/d/1947-prima-condanna-della-corte-di-strasburgo-in-un-caso-di-extraordinary-
rendition.
In addition, the ECtHR found the Macedonian authorities responsible

for violating Article 5 of the European Convention, safeguarding the
right to liberty and security of one’s person. The Court pointed out

that El-Masri was detained in the absence of any judicial order or
warrant whatsoever, unusually confined to a motel room, without any
record of his repeated questioning. What is more, Macedonian officers
firmly denied the complainant the possibility of being assisted by a
lawyer or of contacting German consular authorities (as prescribed
by the Convention of Vienna116) or his wife and children in Germany.
Even in this second argument, the Court imposed responsibility on the
Macedonian authorities for the whole duration of the victim’s captivity
under Macedonian and American control. The reasoning hinging on
Article 5, which is virtually identical to that set forth regarding Article 3,
bases Macedonian vicarious responsibility on the conscious acceptance
of the “real risk”117 that El-Masri would have been deprived—in a foreign
country—of the rights that the European Convention safeguards.
Furthermore, the ECtHR deemed El-Masri’s detention a violation
of Article 8 of the European Convention, protecting private and family
life, since he was deprived of any contact with his wife and children
during his captivity. Macedonian authorities compromised El-Masri’s
dignity and his right to develop his personality by illegitimately
interfering in his personal life.
Finally, according to the ECtHR, Macedonia also frustrated, with
regard to the criminal investigation cited above, the victim’s right to
seek an effective judicial remedy to his sufferings in a national forum,
as guaranteed by Article 13 of the European Convention.118
A. The Innovative Dimension of the Right to the Truth: A Step

Towards Effective Protection of Fundamental Rights?
Beyond the Court’s reasoning on the abovementioned specific
violations, the Strasbourg judges in El-Masri certainly reached a
landmark judgment in European human rights case law: for the first
time, the extraordinary rendition program enacted by the United
States and its allies was explicitly recognized and condemned
116. Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T.
77, 596 U.N.T.S. 261.
117. For the “real risk” doctrine, see the case of Othman (Abu Qatada) v. the
United Kingdom, Eur. Ct. H.R. App. No. 8139/09, ¶ 233 (Jan. 17, 2012), http://hudoc.
echr.coe.int/eng?i=001-108629.
118. It is worth noting that the same violations were found by the Strasbourg
Court in the Abu Omar decision of 2016 (Abu Omar, supra note 70). In particular,
Article 3 of the European Convention on Human Rights was violated, according to
the Court, due to the complicity of Italian authorities in the ER operation and their
inaction in preventing the applicant from suffering torture in Egypt. Furthermore, the
violations of Articles 5 and 8 of the European Convention were assessed by following a
reasoning that is similar to the one in El-Masri. More interestingly, in examining the
complaint under Article 13 of the European Convention, the Court emphasized the
relevant role of the concrete nature of the punishment (e.g., incarceration): it allows
for the existence of an effective remedy at a national level. See Vedaschi, supra note 70.
in court.119 By condemning the ERs, the ECtHR resorted, even

though cautiously and with reference to other rights set forth in the
European Convention, to the right to the truth as an autonomous

legal concept.120
On the one hand, the right to the truth is not a completely new
legal concept; on the other hand, it is one of the most controversial,121
especially with regard to its nature. Although there is no agreed-upon
notion of this right, it has been recognized by domestic,122 regional,123
and international124 jurisdictions. The right was conceived in the
119. This was followed by other recent cases: see Al-Nashiri v. Poland, Eur. Ct.
H.R. App. No. 28761/11 (July 24, 2014), http://hudoc.echr.coe.int/eng?i=001-146044;
Abu Zubaydah v. Poland, Eur. Ct. H.R. App. No. 7511/13 (July 24, 2014), http://hudoc.
echr.coe.int/eng?i=001-146047; Abu Omar, supra note 70.
120. This important achievement was certainly favored by the position of
the United Nations High Commissioner for Human Rights, whose amicus curiae
memorandum expressly referred to the right as “an autonomous right triggered by
gross violations, as in the case of enforced disappearances,” bringing it not only back
within the scope of Article 13 of the European Convention, but also to the provisions
of Articles 2, 3, and 5. See El-Masri v. The Former Yugoslav Republic of Macedonia,
2012-VI Eur. Ct. H.R. 263, ¶ 175. On the cautiousness of the ECtHR in establishing
the existence of a right to truth, in El-Masri and in other following cases, see also
Kathleen Cavanaugh, Unspoken Truths: Accessing Rights for Victims of Extraordinary
Renditions, 47 Colum. Hum. Rts. L. Rev. 1, 48–52 (2016).
121. See Dermot Groome, The Right to Truth in the Fight Against Impunity, 29
Berkeley J. Int’l L. 175 (2011); Cavanaugh, supra note 120.
122. In fact, the right to the truth is recognized by several Latin American
national constitutions. More often, other constitutions contain provisions on the right
to information, disclosure obligations, and similar issues. However, there are few cases
in which national laws expressly mention the right to the truth, see Yasmin Naqvi, The
Right to Truth in International Law: Fact or Fiction?, 88 Int’l Rev. Red Cross 245, 263
(2006). In many cases, national courts also recognized this right. See, e.g., El Tribunal
Constitucional [T.C.] [Constitutional Tribunal], marzo 18, 2004, Genaro Villegas Namuche,
Rol de la Causa: 2488–2002 (Peru); Corte Constitucional [C.C.] [Constitutional Court],
mayo 18, 2006, “Gustavo Gallon Giraldo y Otros v. Colombia,” Sentencia C-370/2006,
www.corteconstitucional.gov.co/relatoria/2006/C-370-06.htm (Colom.).
123. See, at the regional level, Eur. Parl. Ass. Rec. 1056 (1987); Eur. Parl. Ass. Res.
1463 (2005); Eur. Parl. Ass. Res. 1868 (2012); Inter-American Convention on Forced
Disappearance of Persons, June 9, 1994, O.A.S.T.S. No. 68, 33 I.L.M. 1429 (1994).
124. See, e.g., at the international level, Protocol Additional to the Geneva Conventions
of 12 August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (Protocol I) arts. 32, 33, June 8, 1977, 1125 U.N.T.S. 3 (indirect reference
inferred from the right of families to know about the fates of their relatives; originally
applicable in the context of armed conflicts, but then broadened through interpretation);
U.N. High Comm’r for Human Rights Res. 2005/66, “Right to the Truth,” U.N. Doc. E/
CN.4/RES/2005/66 (Apr. 20, 2005); G.A. Res. 60/147, Basic Principles and Guidelines on
the Right to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law
(Dec. 16, 2005); Human Rights Council Res. 12/12, “Promotion and Protection of All
Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the
Right to Development: Right to the Truth,” U.N. Doc. A/HRC/RES/ 12/12; International
Convention for the Protection of All Persons from Enforced Disappearance, Dec.
23, 2010, 2716 U.N.T.S. 3 (being the first treaty to guarantee this right); Rep. of the
Human Rights Council, Right to Truth: Report of the Office of the High Commissioner
for Human Rights, U.N. Doc. A/HRC/5/7 (June 7, 2007); Human Rights Council Res.
12/12,”Promotion and Protection of All Human Rights, Civil, Political, Economic, Social
and Cultural Rights, Including the Right to Development: Right to the Truth,” U.N.
Doc. A/HRC/12/L.27 (Sept. 25, 2009); Human Rights Council Res. 12/12, U.N. Doc. A/
HRC/RES/12/12 (Oct. 12, 2009) (recognizing the existence of a right to know under
international law); G.A. Res. A/RES/68/165, Right to the Truth (Dec. 18, 2013).
context of international law (i.e., human rights law and humanitarian

law) as a crucial element to ensure a redress to victims of gross
violations of human rights.125 Originally, it was invoked in cases of

enforced disappearances, as a right to know about the victims’ fate.
Over the years, the scope of the right has been progressively expanded,
in order to apply it not only in the context of enforced disappearances,
but also in other cases involving serious violations of human rights.126
This expansion affected both its objective definition and its subjective
scope, which includes two contentious dimensions as both an individual
and a collective right.127 In the former dimension, the right belongs
to the victims of gross human rights violations, who want to “know
the truth about the events that led to serious violations of human
rights,”128 including the identity of perpetrators. Consequently, states
have both the duty to “investigate the facts, prosecute and punish
those responsible” for these crimes and the obligation to guarantee
“access to information available in [s]tate facilities.”129 Under the
collective dimension, the right belongs to the victims’ families130 and,
above all, to society as a whole.131
Neither its autonomous standing, nor its collective dimension,
was recognized immediately, not even at the regional level, i.e., under
the Inter-American system, in which this right has been most highly
developed.132 Initially, the Inter-American Court of Human Rights
(IACtHR) did not admit an independent right to the truth, holding
125. See Cavanaugh, supra note 120, at 22.

126. See Barrios Altos v. Peru, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C)
No. 75 (Mar. 14, 2001) (with regard to the killing of several people by some members
of military intelligence).
127. Inter-Am. Comm’n of Human Rights [IACHR], The Right to Truth in the
Americas, OEA/Ser.L/V/II.152 (Aug. 13, 2014).
128. Id. ¶ 14.
129. Id.
130. Blake v. Guatemala, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 36,
¶ 73 (Jan. 24, 1998); Villagrán-Morales & Others v. Guatemala, Merits, Judgment,
Inter-Am. Ct. H.R. (ser. C) No. 63, ¶ 209 (Nov. 19, 1999).
131. See IACHR, Report No. 25/98, OEA/Ser.L/V/II.98, Doc. 6 Rev (Apr. 13,
1998). In this case, the IACHR found that a Chilean amnesty law violated the right
to know not only of victims of the Pinochet regime, but also of the entire society. The
IACHR reasserted this position in a series of cases involving El-Salvador. See Cea v. El
Salvador, Case 10.480, IACHR, Report No. 1/99, OEA.Ser.L/V/II.95, Doc. 7 Rev. (Jan.
27, 1999); Ellacuria v. El Salvador, Case 10.488, IACHR, Report No. 7/98, OEA/Ser.L/V/
II.106, Doc. 3 Rev. (Dec. 22, 1999); Romeo v. El Salvador, Case 11.481, IACHR, Report
No. 32/92, OEA/Ser.L/V/II.106, Doc. 3 Rev. (Apr. 13, 2000).
132. While the Inter-American Commission on Human Rights (IACHR) argued
for a collective dimension of this right, the Inter-American Court of Human Rights (the
so-called Court of San José) initially adopted a very conservative stance: see Contreras
v. El Salvador, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C)
No. 232 (Aug. 21, 2011). However, in some cases such collective interest was recognized
at a certain degree: see Bámaca Velásquez v. Guatemala, Merits, Judgment, Inter-Am.
Ct. H.R. (ser. C) No. 70, ¶¶ 19–21 (Nov. 25, 2000) (separate concurring opinion of
Judge Garcia Ramirez). More attention was placed on the Court itself in Las Dos
Erres Massacre v. Guatemala, Preliminary Objections, Merits, Reparations, and Costs,
Judgment, Inter-Am. Ct. H.R. (ser. C) No. 211 (Nov. 24, 2009).
that it derived from other rights expressly listed in the American

Convention on Human Rights (ACHR).133 Subsequently, though,
the IACtHR established that victims have to play a significant and

proactive role in all stages of criminal investigation, in order to
know the identity of perpetrators who must be held accountable for
their crimes.134 Following this stance, the Court itself mentioned an
autonomous right of access to information held by public authorities.135
Along the same line of reasoning, the Court affirmed that the right to
the truth has to be framed as part of a broader right to (access to)
justice, arguing that states shall be responsible both for investigating
facts and for prosecuting culprits.136 Prosecutions should be followed
by punishments and reparations as forms of accountability. From
this perspective, the IACtHR overtly stated that the truth should
be considered a form of reparation; hence, returning to the collective
dimension, the Court specified that “society as a whole must be
informed of everything that has happened in connection with said
violations.”137 More explicitly, in 2010 and again in 2012, the Court
referenced a legally enforceable right to uncover the truth both
for victims of gross violations (and their heirs) and for society as a
whole.138 It is worth noting that in these cases the Court linked the
right to the truth to the right to personal integrity.139
It is against this background that the ECtHR addressed the
secrecy issue and took the path to the truth in an uneven post-9/11
133. In several cases, the Court rejected the IACHR’s stance that called for an
autonomous right with a collective dimension. See supra note 131 for some examples
in which the IACHR invoked the autonomous standing of the individual and collective
right to the truth. This view was rejected by the Court in a number of judgments.
See Castillo-Páez v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct.
H.R. (ser. C) No. 34 (Nov. 3, 1997); Bámaca Velásquez, Inter-Am. Ct. H.R. No. 70/2000;
Blanco-Romero v. Venezuela, Merits, Reparations, and Costs, Judgment, Inter-Am.
Ct. H.R. (ser. C) No. 138 (Nov. 28, 2005); Pueblo Bello Massacre v. Colombia, Merits,
Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 159 (Nov. 25, 2006).
In particular, in Castillo-Páez v. Peru, the right to the truth was framed as part of right
to (access to) justice (as on obligation to investigate, prosecute, and punish). In the
judge’s words, a right to the truth “does not exist in the American Convention, although
it may correspond to a concept that is being developed in doctrine and case law, which
has already been disposed . . . though the Court’s decision to establish . . . obligation
to investigate the events that produced the violations of the American Convention.”
Castillo-Páez, Inter-Am. Ct. H.R. No. 34/1997, ¶ 86.
134. Tibi v. Ecuador, Preliminary Objections, Merits, Reparations, and Costs,
Judgment, Inter-Am. Ct. H.R. (ser. C) No. 114 (Sept. 7, 2004).
135. Claude-Reyes v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am.
Ct. H.R. (ser. C) No. 115 (Sept. 19, 2006); Gomes-Lund v. Brazil, Merits, Reparations,
and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 217 (Nov. 24, 2010); Álvarez
v. Guatemala, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C)
No. 253 (Nov. 20, 2012).
136. Barrios Altos v. Peru, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 75
(Mar. 14, 2001); Pueblo Bello Massacre, Inter-Am. Ct. H.R. No. 159/2006.
137. Myrna Mack Chang v. Guatemala, Merits, Reparations, and Costs, Judgment,
Inter-Am. Ct. H.R. (ser. C) No. 101, ¶ 274 (Nov. 25, 2003).
138. Gomes-Lund, Inter-Am. Ct. H.R. No. 217/2010.
139. In Álvarez, Inter-Am. Ct. H.R. No. 253/2012, it is related to Articles 5.1 and
5.2 of the ACHR, which affirm the right to personal integrity.
landscape. The El-Masri judgment is not the only ruling in which the
Court asserts a right to the truth;140 however, it is the first decision
concerning the truth with reference to extraordinary rendition

practices.141
Moreover, I would emphasize that in El-Masri, the scope of
the right to the truth goes far beyond the victim’s interest in an
independent and reliable judicial assessment of the facts; it also
satisfies the public interest in awareness of serious human rights
violations, such as those perpetrated in the context of extraordinary
renditions. In other words, the right to the truth, which emerged from
El-Masri, is not only intended to restore the damages suffered by the
victim and his relatives but also to achieve some kind of historical
truth in the interests of civil society as a whole.142 In assessing the
violation of Article 3 of the European Convention, the ECtHR stressed
“the great importance of the . . . case not only for the applicant and
his family, but also for other victims of similar crimes and the general
public, who had the right to know what had happened.”143 Therefore,
even though cautiously and with reference to other rights set forth in
the European Convention, the Court endorsed a new paradigm of the
right to the truth.
140. See Association 21 December 1989 v. Romania, Eur. Ct. H.R. App. Nos.
33810/07 & 18817/08, ¶¶ 144, 194 (May 24, 2011), http://hudoc.echr.coe.int/eng?i=001-
104864 (affirming a right to know about “events involving a massive violation of human
rights,” crucial not only for the victims and their families, but also for Romanian society);
Janowiec & Others v. Russia, Eur. Ct. H.R. App. Nos. 55508/07 & 29520/09, ¶ 156
(Oct. 21, 2013), http://hudoc.echr.coe.int/eng?i=001-127684; Roman v. Finland, Eur. Ct.
H.R. App No. 13072/05, ¶ 51 (Jan. 29, 2013), http://hudoc.echr.coe.int/eng?i=001-115864;
Godelli v. Italy, Eur. Ct. H.R. App. No. 33783/09, ¶ 52 (Sept. 25, 2013), http://hudoc.echr.
coe.int/eng?i=001-113460; Marić v. Croatia, Eur. Ct. H.R. App. No. 50132/12, ¶ 56 (June
12, 2014), http://hudoc.echr.coe.int/eng?i=001-144681. In all of these cases, the right to
know referred to Article 2, 3, 5, or 8 of the European Convention.
141. In other cases, the ECtHR recognized truth-related rights when applying
the principle of “non-refoulement,” according to which it is not possible to extradite a
person if a high risk of torture is foreseeable in the country of destination. See Kaboulov
v. Ukraine, Eur. Ct. H.R. App. No. 41015/04 (Nov. 19, 2010), http://hudoc.echr.coe.int/
eng?i=001-95771; Makhmudzhan Ergashev v. Russia, Eur. Ct. H.R., App. No. 49747/11
(Oct. 16, 2010), http://hudoc.echr.coe.int/eng?i=001-113719; Garayev v. Azerbaijan, Eur.
Ct. H.R. App. No. 53688/08 (June 10, 2010), http://hudoc.echr.coe.int/eng?i=001-99218.
142. In the Court’s words:
The right to the truth inured to the benefit of the direct victims of the
violation, as well as to their relatives and to society at large. Rights holders
were entitled to seek and obtain information on various issues, namely the
identity of the perpetrators, the progress and results of an investigation
and the circumstances and reasons for the perpetration of violations. On
the other hand, the right to the truth placed comprehensive obligations on
the State, including duties (1) to carry out an effective investigation; (2) to
give victims and their relatives effective access to the investigative process;
(3) to disclose all relevant information to the victims and the general public;
and (4) to protect victims and witnesses from reprisals and threats.
El-Masri v. The Former Yugoslav Republic of Macedonia, 2012-VI Eur. Ct. H.R. 263,
¶ 175 (emphasis added).
143. See id. ¶ 191.
In this aspect, the El-Masri judgment demonstrates a rather

unusual cross-fertilization between the IACtHR and the ECtHR, with
the latter’s reasoning being clearly influenced and, to some extent,

guided by the former’s well-established case law on the right to the truth.
In fact, while the longstanding authority of the ECtHR has often led to
its judgment being referred to by other regional (and domestic) courts,
reference to other courts’ case law by the ECtHR itself is an argument
used with great caution. The El-Masri case demonstrates that the right
to the truth, originally developed in the Latin American system, has
subsequently been imported in the European jurisdiction.144
Indeed, Judges Tulkens, Spielmann, Sicilianos, and Keller, in their
joint concurring opinion, further insisted on the right to the truth as
an autonomous right, resulting from the provision of Article 13 of the
European Convention (right to an effective remedy), in conjunction
with Articles 3, 5, and 8 (respectively, prohibition of torture, right to
liberty and security, right to respect for private and family life).145 The
right to the truth, while not regarded as an innovative legal concept
by the concurring judges, is nonetheless interpreted as the result
of the interplay between well-established rights, and safeguards
the necessary relationship of trust that civil society and democratic
institutions are bound by.146 The concurring opinion explicitly recalls
Inter-American Court of Human Rights case law,147 stressing its early
acknowledgement of the right to the truth (as far back as 1988)148
144. See Arianna Vedaschi, Il diritto alla verità e le misure antiterrorismo nella
giurisprudenza della Corte di Strasburgo, in Sicurezza e libertà in tempi di terrorismo
globale 167 (Lorena Forni & Tiziana Vettor eds., 2017); Vedaschi, Globalization of
Human Rights, supra note 43.
145. El-Masri, Eur. Ct. H.R., ¶ 4 (Tulkens, Spielmann, Sicilianos, and Keller, JJ.,
concurring):
We consider, however, that the right to the truth would be more appropriately
situated in the context of Article 13 of the Convention, especially where, as in
the present case, it is linked to the procedural obligations under Articles 3, 5 and
8. The scale and seriousness of the human rights violations in issue, committed
in the context of the secret detentions and renditions system, together with
the widespread impunity observed in multiple jurisdictions in respect of such
practices, give real substance to the right to an effective remedy enshrined
in Article 13, which includes a right of access to relevant information about
alleged violations, both for the persons concerned and for the general public.
146. Id. ¶ 6:
For society in general, the desire to ascertain the truth plays a part in
strengthening confidence in public institutions and hence the rule of law. . . .
A more explicit acknowledgment of the right to the truth in the context of
Article 13 of the Convention, far from being either innovative or superfluous,
would in a sense cast renewed light on a well-established reality.
147. Id. ¶ 9. For a recognition of judgments of the Inter-American Court of
Human Rights on the right to truth and enforced disappearance, see Tullio Scovazzi &
Gabriella Citroni, The Struggle Against Enforced Disappearance and the 2007 United
Nation Convention (2007).
148. See Velásquez-Rodríguez v. Honduras, Merits, Reparations, and Costs,
Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988), in which the existence
of such a right was inferred, even if not explicitly. See supra note 135 for other cases
witnessing the evolution of this right. See also the case cited supra note 137.
and, by contrast, criticizes the timid approach of the ECtHR and its
reluctance in establishing the right to the truth as a self-standing
legal principle.149

While Judges Tulkens, Spielmann, Sicilianos and Keller criticized
the ECtHR’s cautious attitude to the right to the truth as an autonomous
concept, other members of the panel stressed their opposition to
such an innovation in the Court’s case law. In particular, in order
to highlight the centrality of the right to a full judicial review and
the ancillary nature of the new right to the truth, Judges Casadevall
and López Guerra dissented, affirming that “no separate analysis as
performed by the Grand Chamber in paragraph 191 of the judgment
was necessary with respect to the existence of a ‘right to the truth’
as something different from, or additional to, the requisites already
established in such matters by the previous case law of the Court.”150
Furthermore, “[the only] required activity amounts to finding out the
truth of the matter, irrespective of the relevance or importance of the
particular case for the general public.”151 Thus, “a separate analysis of
the right to the truth becomes redundant.”152
It is my opinion that Judges Casadevall and López Guerra
represented, in a certain sense, the voice of a longstanding tradition
of cautiousness and self-restraint in outlining “new generation” rights
other than those expressly provided by the European Convention that
have characterized the Court over the years. Moreover, their skeptical
attitude towards the “new” right to the truth in its dimension of the
right for the public at large (i.e., for civil society) reflects the idea
of a regional court focused on granting adequate compensation to
individuals (or groups) rather than to performing a broader (and
higher) function for European society as a whole. The role traditionally
played by the Court, as a supranational arbiter of last resort, justifies
its conviction that it should be habitually limited in scope (and the
El-Masri case made no exception) to the mere material compensation
for violations suffered.
149. The Abu Omar decision of the ECtHR should also be considered. See
Abu Omar, supra note 70. While it consolidates the approach taken in El Masri by
explicitly condemning ERs for being contrary to Articles 3, 5, 8, and 13 of the European
Convention, the Abu Omar decision fails to mention the right to the truth. However,
rather than being interpreted as a step backwards, this could be due to the fact that in
the Abu Omar case, unlike in El-Masri, effective inquiries had been undertaken. The
controversial issue here, generally, is the impossibility of forcing the perpetrators to
actually, rather than merely symbolically, serve the sentence of which they have been
convicted.
150. El-Masri v. The Former Yugoslav Republic of Macedonia, 2012-VI Eur. Ct.
H.R. 263 (Casadevall and López Guerra, JJ., concurring).
151. Id.
152. Id. In order to synthetize their ideas, the dissenting judges further affirmed
“as far as the right to the truth is concerned, it is the victim, and not the general public,
who is entitled to this right as resulting from Article 3 of the Convention, in the light
of the Court’s case-law.”
I am also of the opinion that the concept underlying Judges

Casadevall and López Guerra’s position, although understandable
and rational, should be overcome by the increasing need for an

awareness of human rights violations, which seems to be the most
effective way to hold governments accountable for their wrongdoings
in democratic societies. I therefore call for a stronger and more
courageous affirmation of the right to the truth as a self-standing
right, not tied to procedural obligation as set forth in Articles 3, 5,
and 8 of the European Convention. The right to the truth can realize
the very purpose of Article 13, ensuring an effective remedy and full
access to relevant information on alleged violations to the victim, his
or her relatives, and to the general public.153
From this perspective, I would like to point out another important
passage of the Court’s reasoning that might have some major effects
at the national level, at least in terms of moral persuasion. The
Strasbourg judges blamed the behavior of the states involved and their
placement of improper obstructions in the search for truth,154 pointing
out how the United States systematically resorted to the state secrets
privilege to evade judicial review.155 Such an approach, according to
the Court, risks undermining the rule of law.156
Following the same reasoning, the Court, in the Abu Omar case,157
established that secrecy claims are not lawful when invoked either to
cover facts already in the public domain (such as the extraordinary
rendition program)158 or to avoid prosecution of governmental officials
charged with gross violations of human rights on the grounds of
compelling evidence. In this decision the ECtHR, although it did not
153. See id. ¶ 4. (Tulkens, Spielmann, Sicilianos, and Keller, JJ., concurring).
154. See id. ¶¶ 46, 103, 191 (majority opinion) (“[S]ome of the States concerned
were not interested in seeing the truth come out.”).
155. See id. ¶ 63.
156. See id. ¶ 192 (“[A]n adequate response by the authorities in investigating
allegations of serious human rights violations, as in the present case, may generally be
regarded as essential in maintaining public confidence in their adherence to the rule
of law and in preventing any appearance of collusion in or tolerance of unlawful acts.”).
157. Abu Omar, supra note 70. While it consolidates the approach taken in El
Masri by explicitly condemning ERs for being contrary to Articles 3, 5, 8, and 13 of
the European Convention, the Abu Omar decision fails to mention the right to the
truth. However, rather than being interpreted as a step backwards, this could be due
to the fact that in the Abu Omar case, unlike in El-Masri, effective inquiries had been
undertaken. See supra notes 70, 112, and 114. The controversial issue here, generally, is
the impossibility of forcing the perpetrators to actually, rather than merely symbolically,
serve the sentence of which they have been convicted. See Federico Fabbrini & Arianna
Vedaschi, Secrecy and Accountability for Extraordinary Renditions to Torture: Italy, the
European Court of Human Rights and the Abu Omar Case, 2017 Eur. J. Hum. Rts. 3;
Vedaschi, supra note 70.
158. See the two reports by Dick Marty cited supra note 99. See also Rapporteur
Giovanni Claudio Fava, Eur. Parliament, Temporary Comm. on the Alleged Use
of European Countries by the CIA for the Transportation and Illegal Detention of
Prisoners, Report on the Alleged Use of European Countries by the C.I.A. for the
Transportation and Illegal Detention of Prisoners, 2006/220 (INI) (Jan. 30, 2007).
expressly mention the right to the truth linked to the right to justice
(i.e., to access to effective justice), established that the European
Convention is violated when perpetrators of gross violations of human

rights (as those of ERs) are not charged, tried, prosecuted, found guilty,
and sentenced within a prompt, thorough, independent, and, above
all, effective inquiry.
In this light, the ECtHR’s approach is significantly different from
that of U.S. courts, which, when they had been called on to review
the state secrets privilege in ERs litigation, upheld its legitimacy
irrespective of whether the facts and information concerned were
already in the public domain.159 Moreover, U.S. courts accepted the
state secrets privilege invoked by the government, even when its
consequence was a denial of justice in cases of serious human rights
violations. In other words, in the post-9/11 era and with specific
regard to ERs cases, U.S. courts permitted a wide use of state secrecy
to confer impunity on public officers who committed abuses and
crimes.160 In upholding this low threshold for an assertion of secrecy,
U.S. courts have shown their great deference to the Executive.161 The
Italian Constitutional Court showed a similar deference in endorsing
the PCM’s decision to assert state secrecy.162 By contrast, in keeping
secrecy as an exception to be strictly interpreted and thus requiring
a high legitimacy threshold for assertions of a secrecy privilege,
the ECtHR seems to be the only forum before which states have to
take responsibility for gross human rights violations committed in
the struggle against terrorism. In other words, at least for member
states to the Council of Europe, the regional Court is the last resort
for victims who want to hold national governments accountable.
The ECtHR’s stance contributes both to combatting impunity, which
domestic jurisdictions failed to do at least in the ERs context, and to
serving justice by unveiling the untold truth in a judicial forum.
I agree with the ECtHR and I applaud its decision in the El-Masri
case. Nevertheless, I think this remarkable step towards a stronger
159. El-Masri v. United States, 479 F.3d 296, 309 (4th Cir. 2007).
160. In this regard, the Obama Administration, thanks to the abovementioned
change of approach towards counter-terrorism, contributed to ensuring greater
transparency about past abuses and improved guarantees for persons subjected
to antiterrorism practices. On the Obama Administration’s approach, see sources
cited supra note 31 and the discussion supra note 37. Nevertheless, regarding
accountability, many shortcomings remained in place due to the refusal to actually
punish perpetrators. See supra note 40.
161. See also Mohamed v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128 (N.D.
Cal. 2008), rev’d, 563 F.3d 992 (9th Cir. 2009), amended and superseded by 579 F.3d 949
(9th Cir. 2009), reh’g granted, 586 F.3d 1108 (9th Cir. 2009), aff’d, 614 F.3d 1070 (9th
Cir. 2010) (en banc), cert. denied, 563 U.S. 1002 (2011).
162. This deferential approach has been a common feature of national courts in
the comparative scenario. One important exception can be seen in the stance taken by
Italian merit’s courts and the Supreme Court of Cassation in the Abu Omar case, even
if their attempt to take a more courageous attitude by ensuring accountability was
smothered by the Constitutional Court. See supra note 46.
respect of the rule of law is not enough for a complete vindication of the
human rights that have been violated. First of all, the country that has
directed the ER program, i.e., the United States, is a non-contracting

party and therefore does not fall within the jurisdiction of the ECtHR.
Indeed, the United States, which led the ER program, is not subject
to any supranational forum at all.163 Furthermore, the jurisdiction of
the ECtHR is aimed at forcing contracting parties to pay damages to
the victims of gross violations of human rights, but it is not aimed at
punishing the perpetrators of these severe human rights violations
(i.e., intelligence officers or agents). This limit could be detrimental in
terms of deterrence; in fact, when crimes are not punished, no effective
deterrent exists. In other words, a full vindication of human rights in
ordinary domestic fora will be a deterrent to those who might seek to
commit these crimes. Finally, a full vindication is crucial in order to
maintain public trust in the justice system and ultimately to uphold
the rule of law.164
Conclusions
This Article has demonstrated that, although institutional
mechanisms aimed at scrutinizing the use of state secrecy to test
secrecy’s consistency with the rule of law exist in democratic systems,
these mechanisms are ineffective.
The comparative analysis undertaken in this Article has
highlighted the fact that the power to invoke state secrecy belongs
exclusively to the executive branch without any effective checks
and balances. On the one hand, the oversight of state secrecy by
representative assemblies is extremely weak and unsatisfactory due to
assemblies’ inherently political nature. This is especially so when the
matter is national security, as is the case with ERs, and is regardless
of whether the system is parliamentary or presidential. On the other
hand, domestic—supreme and constitutional—courts have clearly
demonstrated excessive self-restraint in matters of state secrecy.
Without any effective political or judicial oversight of the use of
secrecy, security concerns tend to prevail over any kind of personal
freedoms or human rights. This trend is not consistent with the
rule of law: when gross violations of basic rights go unpunished,
163. In fact, the United States signed but never ratified the convention
establishing the Inter-American Court of Human Rights, created in 1979 within
the Organization of American States. It should be noted that the case of El-Masri
is pending before the Inter-American Commission on Human Rights. IACHR,
Report No. 21/16, Petition 419/08, Report on Admissibility, Khaled El-Masri v. United
States, OEA/Ser.L/V/II.157, Doc. 25 (Apr. 15, 2016).
164. Directorate Gen. of Human Rights & the Law, Council of Eur.,
Eradicating Impunity for Serious Human Rights Violations 7 (2011), http://
policehumanrightsresources.org/wp-content/uploads/2016/06/CoE-Guidelines-on-
Eradicating-impunity.pdf (“[I]mpunity must be fought as a matter of justice for the
victims, as a deterrent to prevent new violations and to uphold the rule of law and
public trust in the justice system.”).
domestic courts in effect abdicate their essential role, as the Italian

Constitutional Court did in the Abu Omar case. Indeed, in upholding
the position of the Italian government in this much-debated case, the

Constitutional Court adopted a strict and formalistic stance on the
use of classified information, thus forcing the Court of Appeal and
the Supreme Court of Cassation to acquit several officers of Italian
military intelligence (including the then-Director) who had been
accused of providing operational support to the CIA in the rendition
of Abu Omar. Equally, the silence of the U.S. Supreme Court and the
great deference of U.S. federal courts effectively denied justice to
El-Masri (the victim of a simple case of mistaken identity) and placed
the intelligence agents involved in his ER beyond justice.
Ultimately, due to an expansive use of secrecy, these are cases
where public officials or intelligence agents who commit gross
violations of human rights are not called to account for their
abuses; as a consequence, there is no effective relief or remedy for
these crimes. At the domestic level, not only are personal freedoms
restricted on national security grounds, but basic human rights are
also sacrificed, even when there is an absolute prohibition against
illegal practices such as torture. Although the language used by courts
refers to the balancing and weighing up of security and freedom, when
democracies face an emergency (such as the ongoing one brought
about by the threat of international terrorism), the hierarchical idea of
fundamental values is heavily skewed in favor of national security.165
As a result, so-called mature democracies should ask themselves if
the beginning of the twenty-first century marks the end of “the age of
rights”166 and the beginning of an era of impunity. When governments
use state secrecy to obstruct the search for the truth, and courts show
great deference, the rule of law is in danger. Denying justice in the
name of national security runs the risk of rupturing the “inseparable
connection between the means of enforcing a right and the right to be
enforced.”167 However, such a new direction opens up another crucial
question—Does constitutional law have anything more to say in this
new fundamentally altered context, i.e., in the “post-rights” era? As
a constitutional law scholar, instinctively, my answer could not be
anything but the affirmative. It was not the purpose of this Article to
argue about emergency powers from a theoretical perspective; however,
165. Arianna Vedaschi, Has the Balancing of Rights Given Way to a Hierarchy
of Values?, 1 Comp. L. Rev. 1, 1 (2010); but cf. Ginevra Cerrina Feroni & Giuseppe
Morbidelli, La sicurezza: Un valore superprimario, 1 Percorsi costituzionali 31 (2008).
See generally Michel Rosenfeld, Judicial Balancing in Time of Stress: A Comparative
Constitutional Perspective, in Counterterrorism: Democracy’s Challenge 357 (Andrea
Bianchi & Alexis Keller eds., 2008).
166. See generally Norberto Bobbio, The Age of Rights (1995).
167. Albert V. Dicey, Introduction to the Study of the Law of the Constitution 199
(10th ed. 1965). As William Blackstone said: “[I]t is a settled and invariable principle
in the laws of England, that every right when withheld must have a remedy, and every
injury its proper redress.” 3 William Blackstone, Commentaries *109.
in my opinion, the current normalization of emergency powers that has

occurred within advanced democracies in order to face the terrorist
threat should be counterbalanced by proper institutional and political

mechanisms that should work effectively. In fact, this new model of
normalization of emergency seems to have lost its traditional purpose
(i.e., restoring the status quo ante), which is a typical and essential
component of liberal constitutionalism. While formal emergency is set
to limit exceptional measures in time and in scope, this new model of
normalization of emergency de facto legitimizes permanent restrictions
on civil liberties that should undergo stricter scrutiny in order to
avoid potential abuses and ensure the enforcement of the rule of law.
In other words, only when the use of exceptional powers, including the
resort to secrecy, is continuously monitored and effectively overseen,
will the overflowing power of executives be properly stemmed, and
counter-terrorism measures enacted without disrupting the rule of
law.

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ARIANNA VEDASCHI*

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This Article examines the use of state secrecy by the advanced

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1. Senate Select Comm. on Intelligence, 113th Cong., Committee Study of the

times the overwhelming majority of them have preferred to use their

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pre-trial custody6 and increases the maximum statutory sentences for

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information related to national security, have played a steadily more

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judicial review. In order to avoid the considerable and disquieting

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14. See supra note 3.

Against this background, I argue that courts should carefully

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fair protection to fundamental human rights is not enough to fully

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I. Secrecy vs. Transparency: A Comparative Overview of Post-9/11

18. Norberto Bobbio, The Future of Democracy: A Defence of the Rules of

In contrast to these desired limits, in the field of counter-terrorism

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intelligence information as evidence in court,22 which undermines

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completely lacking in any form of effective oversight, of either how

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26. This also characterizes some other administrative measures used in the

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within a democratic society in order to test the relationship between

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32. Rendition to justice (also called “ordinary” rendition) implies that the

Presidents George H.W. Bush34 and Bill Clinton.35 Indeed, under

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34. National Security Directives (NSD), Bush Administration, 1989–93, Fed’n

intelligence agencies: gathering as much information as possible

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However, a number of lawsuits brought against the United States (and

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III. The Abu Omar Case: The Self-Restraint of the Italian

41. Micaela Frulli, Some Reflections on the Functional Immunity of State

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order to avoid answering the questions of the public prosecutor (who

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Vittorio Grevi, Segreto di Stato e processo penale: Evoluzione normativa e questioni

public prosecutor or the judge will raise a jurisdictional dispute

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Moreover, in its reasoning, the Constitutional Court stressed “the wide

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56. Corte Cost., n. 40/2012, ¶ 5 (translated by author).

with a question of national security.61 Nonetheless, according to the

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way (as constitutional system),68 the Court accepted the assertion of

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IV. The El-Masri Case: The Deferential Approach of U.S. Domestic

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71. United States v. Reynolds, 345 U.S. 1 (1953).

the federal government under Rule 37 FRCP.75 According to the Court,

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75. Fed. R. Civ. P. 37.

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79. Totten v. United States, 92 U.S. 105 (1876).

any claim from being brought in U.S. federal court in relation to secret

A. The Innovative Dimension of the Right to the Truth: A Step