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Council of Europe: Parliamentary Assembly Adopts Resolution on Abuse of State Secrecy and National Security

(Sept. 12, 2011) As the United States prepares to commemorate the ten-year anniversary of the tragic events of September 11, 2001, across the Atlantic, the Council of Europe (COE), a regional organization dedicated to promoting and safeguarding human rights, has been particularly active. On September 7, 2011, the Parliamentary Assembly (PA) and the Committee of Ministers, in a joint statement, paid tribute to the victims of September 11 and held that the date “should serve as a reminder that terrorism has no ideology, no nationality and no religion. Terrorism in all its forms is a violation of the most fundamental human right: the right to life.” (Council of Europe Pays Tribute to Victims of September 11 Terrorist Attacks (Sept. 7, 2011).)

The above statement also coincides with the release of a resolution in provisional form by the PA of the COE on what European observers view as the timely and critical issue of abuse of state secrecy and national security as rationales often invoked by governments in order to obstruct access to confidential information during parliamentary or judicial inquiries. The provisional resolution, titled “Abuse of State Secrecy and National Security: Obstacles to Parliamentary and Judicial Scrutiny of Human Rights Violations,” together with an explanatory report, is a follow-up to a previous report, drafted by the Committee on Legal Affairs and Human Rights of the PA, on the highly publicized secret detentions and transfers of detainees carried out with the complicity of several COE Member States. (Provisional Resolution, Council of Europe PA website (last visited Sept. 9, 2011).)

The upcoming commemoration and the drafting of the resolution prompted the Commissioner of Human Rights of the COE, Thomas Hammarberg, to comment earlier, on his blog, that ten years of a “global war on terror” has undermined human rights, including in Europe. He criticized European governments for being complicit in the rendition program and said that, by doing so, “they violated fundamental tenets of our systems of justice and human rights protection.” He also noted that European governments have thus far granted immunity to those involved in carrying out the rendition program and urged authorities to prevent such a “misguided approach” to combat terrorism. (Thomas Hammarberg, Ten Years of “Global War on Terror” Undermined Human Rights – Also in Europe, THE COUNCIL OF EUROPE COMMISSIONERS' HUMAN RIGHTS COMMENT (Sept. 1, 2011).)

The current resolution recognizes the need for governments to protect secrets affecting national security; however, it expresses the view that information on the accountability of state agents who have engaged in serious violations of human rights, including, enforced disappearance, murder, torture, or abductions, should not be subject to the state secrecy doctrine. (Provisional Resolution, supra.)

Concerning the judicial inquiries that COE Member States included on a list in a 2007 COE report on the renditions were required to launch, the resolution adopted the following points:

· It welcomed the inquiries conducted by German and Italian authorities on the abductions of Khaled El-Masri and Abu Omar;

· It welcomed the amicable settlement concluded by the British authorities with the alleged victims of abuses;

· It urged the authorities in Lithuania, Poland, Portugal, and Spain to continue their investigations of allegations of secret CIA detentions and called on the Romanian and Former Yugoslav Republic of Macedonia (FYROM) judicial authorities to initiate serious investigations; and

· It urged the U.S. authorities to cooperate with investigations undertaken in the above-named countries. (Id.)

With regard to parliamentary inquiries, the resolution reached the following conclusions:

· It regretted the decision of the German government to withhold information requested by the investigative commission of the German Bundestag , which led the Federal Constitutional Court to censure the government's action;

· It welcomed the investigations undertaken by the national security and defense committee of the Lithuanian parliament, which confirmed the existence of two secret detention centers in that country, without establishing that detainees were actually held there or that senior officials had been privy to information about connections between CIA agents and the agents of the Lithuanian secret service;

· It condemned the Romanian and Polish Parliaments for supporting the official position of their respective governments; and

· It noted with surprise that the Parliament of FYROM held it was unnecessary to initiate an inquiry in the El-Masri case. (Id.)

In addition, the resolution adopts some important recommendations for COE Member States and observers that lack monitoring bodies for secret services. These include the need to adopt:

• a Parliamentary oversight mechanism to ensure that secret services have access to important data and at the same time protect state secrets; and

• some special procedure to ensure that during the implementation of civil or criminal procedures involving special services, state secrets are dealt with without endangering the security interests of the state. (Id.)