European Council Offers Rebuke to U.S. Secrecy Policy

A draft resolution (pdf) prepared for the inter-parliamentary Council of Europe bluntly criticized the “cult of secrecy” in the United States and other nations and it praised the role of whistleblowers in helping to challenge the abuse of secrecy authority.

“In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offences such as abduction and torture, or to stop victims from suing for compensation,” the draft resolution stated.

The draft, written by Dick Marty of Switzerland, was approved September 7 by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe.  It is to be debated by the full Assembly next month.  See “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations,” provisional version, September 7.

The document criticized various member nations for failing to conduct probes of detentions and abductions that were reportedly carried out by or in cooperation with the CIA.  The author acknowledged the existence of legitimate secrets, but stressed the need to enforce legal norms even, or especially, in the domain of national security.

“The Assembly recognises the need for states to ensure effective protection of secrets affecting national security. But it considers that information concerning the responsibility of state agents who have committed serious human rights violations, such as murder, enforced disappearance, torture or abduction, should not be subject to secrecy provisions,” the draft resolution said.

The document pointed approvingly to Canada’s response to the case of Maher Arar, a Canadian who was seized in New York, deported to Syria by the CIA and tortured, though he was guilty of no crime.  The government of Canada apologized for the episode and provided financial compensation to Arar.  But under U.S. law, by contrast, Arar was not permitted even to argue his case in court and to seek a remedy, after the government invoked the “state secrets” privilege.

“As Canada demonstrated in the Maher Arar case, it is possible to put in place special procedures for the supervision of the activities of the special services guaranteeing both the adequate protection of legitimate state secrets and the protection of fundamental rights and freedoms,” the draft resolution said.  The U.S. government and the American legal system were incapable of achieving a comparable outcome to the case.

“We are confronted with a real cult of secrecy,” the document said. “It is therefore justified to say that whistleblowers play a key role in a democratic society and that they contribute to making up the existing deficit of transparency.”

The resolution praised the role of WikiLeaks in publishing “diplomatic reports confirming the truth of the allegations of secret detentions and illegal transfers of detainees.”  But it also stated that “It is essential that such disclosures are made in such a way as to respect the personal safety of informers, human intelligence sources and secret service personnel” — a condition that WikiLeaks has repeatedly failed to fulfill.

The resolution proposed several “basic principles for judicial and parliamentary scrutiny of the secret services” in democratic nations, along with recommendations to improve such oversight.

Most fundamentally, it said, “Breaches of the law and comparable abuses by agents of the Government are not by their nature legitimate secrets.”