2. National regimes and practices in EU Member States on the use of intelligence
2.6 Justifications for the use of state secrets – what is national security?
Governments often invoke an argument based on the common interest to keep certain documents or witnesses confidential or to exclude them during a trial. This argument is often based on concepts such as
‘national security’, ‘secret défense’ and ‘state interest’, which encompass many different meanings across
59 Articles 3 and 4 of Law 9/1968, 5 April, on Official Secrecy.
60 See Article 5(1) of Law 11/2002, 6 May, creating the CNI.
61 Ibid., articles 11 and 12.
62 See A. Giménez-Salinas (2003), “The Spanish Intelligence Services”, in Brodeur, Gill and Töllborg (eds), op. cit., p.
76.
63 Decision 106/2009 of the Italian Constitutional Court of 11 March 2009. More details on the case can be found in Italy Country Fiche in Annex 5.
64 Article 256 of the Italian Code of Criminal Procedure.
65 Article 202 of the Italian Code of Criminal Procedure and Article 41 of Law 124/2007.
66 Comitato Parlamentare per la Sicurezza della Repubblica, composed of five members of the House of Deputies and five members of the Senate.
67 See Constitutional Court Decision n. 106/2009 of 11 March 2009.
68 See, for example, C. Danisi (2011), “State Secrets, Impunity and Human Rights Violations: Restriction of Evidence in the Abu Omar Case”, Essex Human Rights Review 8, 1, October; F. Messineo (2009), “‘Extraordinary Renditions’
and State Obligations to Criminalize and Prosecute Torture in the Light of the Abu Omar Case in Italy”, Journal of International Criminal Justice 7, 5, 1023-1044; A. Vedaschi, “Arcana Imperii and Salus Rei Publicae: state secrets privilege and the Italian legal framework”, in Cole, Fabbrini and Vedaschi (eds), op. cit., Chapter 7.
the EU Member States examined in our case-studies. The terms encountered during our research include
“national security”, “public interest”, “legitimate state security”, “very pressing interests of national security”, “threat to security”, or "national defence secret". The argument can be traced back to the concept of raison d’Etat or “reason of State”.69
The essential notion is that States may interfere with certain individual rights in exceptional circumstances, when their independence, sovereignty, territorial integrity, constitutional order and/or public safety are threatened. While the origins of the term "national security" in the United States in the 1950s were framed by the threat of war by a foreign enemy,70 the concept has broadened to include criminal activities, terrorism and migration. Bigo (1994) has shown in the “security continuum” model that there have been shifts away from the one-dimensional Cold War security concept and towards fears of population movements and, more specifically, transnational organised crime, which is cited in political rhetoric as a way to justify new surveillance powers.71 What are the different understandings and conceptualisations of national security in the seven EUMS examined in this study? The following paragraphs examine how they are understood or framed; a summary of this analysis is provided in the form of a table in Annex 3.
While the concept of national security is not defined in any piece of legislation in the United Kingdom, its meaning has been considered by the courts. The House of Lords, SSHD v. Rehman, defined ‘national security’ as the “security of the United Kingdom and its people”, which encompasses the protection of democracy and the legal and constitutional systems of the state, military defence and actions against a foreign state.72 Other terms may also be employed: the “international relations of the UK”, the “detection and prevention of crime”, or any other “national” or “public interest”.73
In France, “secret défense” (‘top-secret defence matter’) and “sécurité nationale” (‘national security’) are two different concepts linked together in a defence-security continuum asserting a unity of threat, whether foreign or domestic.74 The national security concept in France is influenced by the English-speaking world and has only recently been introduced. Several pieces of legislation refer to it, including a decree which states that “the protection of secrecy concerns all fields of activity related to defence and national security:
political, military, diplomatic, scientific, economic, industrial”.75 However, the notion of sécurité nationale is used more in a doctrinal manner in France. Its definition remains by and large uncertain as it is used either as motivation for adopting measures to ensure security, or, more simply, as a synonym for national defence prove disadvantageous to the interests of the Federation or of a Land”.77 German courts and their case law
69 See N. Machiavelli (1512), The Prince, as well as G. Botero (1589), The Reason of State.
70 See, for example, Walter Lippmann’s definition in 1943: “a nation has security when it does not have to sacrifice its legitimate interests to avoid war, and is able, if challenged, to maintain them by war”, in W. Lippmann (1943), U.S.
Foreign Policy: Shield of the Republic, Boston: Little, p. 5.
71 D. Bigo (1994), “The European internal security field: stakes and rivalries in a newly developing area of police intervention”, in M. Anderson and M. den Boer (eds), Policing Across National Boundaries, London: Pinter, pp. 161-173.
72 See SSHD v. Rehman [2003] 1 AC 153, paragraphs 16, 17 and 50.
73 See UK Country Fiche in Annex 5.
74 See France Country Fiche in Annex 5.
75 See the “Arrêté du 30 novembre 2011 portant approbation de l’instruction générale interministérielle n° 1300 sur la protection du secret de la défense nationale”, Titre Ier, as well as “loi n° 91-646 du 10 juillet 1991”.
76 The orchestrated burning of the Reichstag in February 1933 allowed Hitler to abolish key basic rights and all constitutional guarantees in Germany on the grounds of protecting the people and the State. See R. A. Miller (2010),
“Balancing Security and Liberty in Germany”, Journal of National Security Law & Policy, Vol. 4, p. 369, in particular Section 1.
77 See Section 99(1) of the Code of Administrative Court Procedure (English translation may be found at www.gesetze-im-internet.de/englisch_vwgo/englisch_vwgo.html).
have interpreted this reason for refusal narrowly by limiting its application to knowledge that could be disadvantageous to important interests only. These may include the external and internal security of Germany, or the existence and functioning of the Federation or a federal state as such. Furthermore, the courts have insisted that it has to be sufficiently likely that the disadvantages will materialise.78
There is no common concept or definition of national security in the legislation in Spain. Only indirect references are contained in certain pieces of legislation, and these are more related to home affairs than to justice. The threat or damage to “the security and defence of the state” is mentioned in a 1968 law.79 More recent legislation specifies that the threat could be to “the independence or territorial integrity of Spain, national interests and the stability of the rule of law and its institutions”.80 These concepts are used when the government determines that a document must be classified.
The legal system in Italy also lacks a proper definition of national security. Nevertheless, with regard to the state secrets privilege, mention is made of the protection of the “security of the Republic” when dealing with non-disclosure of documents.81 This includes “the integrity of the Republic (including in relation to international agreements, the defence of its underlying institutions as established by the Constitution, the State’s independence vis à vis other states and its relations with them, as well as its military preparation and defence)”.82 The concept of “security of the Republic” is not explicitly limited to the purposes of the intelligence services but can be generally applied within the whole legal system. The Italian Constitutional Court has interpreted the state secrets privilege as a legitimate tool for protecting the supreme interests of the State as a democratic community of individuals.83 However, as outlined above, the recent judgments of the Constitutional Court regarding the Abu Omar case have taken a controversial approach to granting broader discretionary power to the executive branch.84
The concept of national security plays a major role in justifying the use of secret information in criminal procedures under the Act on Shielded Witnesses in the Netherlands. The concept of national security is not specifically defined in Dutch legislation, but the case law has recognised the discretion of the main intelligence agency (AIVD) in deciding what constitutes a threat to national security.85 Annual reports of the AIVD include, for example, terrorist violence, the proliferation of weapons of mass destruction or espionage activities as issues that are considered to pose a threat to national security.86 The Dutch National Security Strategy in 2007 foresees that “national security is at stake when one or more of the country’s and/or society’s vital interests are threatened to such an extent that potential societal disruption could occur”.87 Such interests may include territorial, economic, ecological or physical security, and social and political stability.88 In Sweden, the 2009 Public Access to Information and Secrecy Act defines national security as “any sort of information which can harm the country”.89 The 1949 Freedom of the Press Act lists the interests that may be protected by keeping official documents secret:
1. national security or Sweden’s relations with a foreign state or an international organisation;
2. the central financial policy, the monetary policy, or the national foreign exchange policy;
3. the inspection, control or other supervisory activities of a public authority;
78 See R. Rudisile, in F. Schoch, J. Schneider and W. Bier (eds), Verwaltungsgerichtsordnung, Sect. 99 par. 16; Posser, in: Posser/Wolff (eds), BeckOK VwGO, Sect. 99 par. 20.1.
79 Art. 2 of Law 9/1968 on Official Secrecy.
80 Art. 1 Law 11/2002, 6 May 2002, on regulation of the National Centre of Intelligence (CNI).
81 See Article 39.1 of Law 124/2007, available in English at www.sicurezzanazionale.gov.it/sisr.nsf/english/law-no-124-2007.html.
82 Ibid.
83 See Italian Constitutional Court, judgments 82/1976 and 86/1977.
84 Ibid., judgments 106/2009, 40/2012 and 24/2014.
85 See Raad van State, 04-07-2006, 200602107/1.
86 See the AIVD Jaarverslag 2013: www.aivd.nl/publicaties?ActLbl=jaarverslag-2013&ActItmIdt=3097.
87 See the Netherlands Country Fiche in Annex 5. The 2007 National Security Strategy (Strategie Nationale Veiligheid) is available at www.nctv.nl/onderwerpen/nv/strategie-nationale-veiligheid/.
88 Ibid.
89 See Sweden’s Public Access to Information and Secrecy Act (Offentlighets- och sekretesslagen [2009:400]).
4. the interest of preventing or prosecuting crime;
5. the public economic interest;
6. the protection of the personal or economic circumstances of private subjects; or 7. the preservation of animal or plant species.90
A more precise hint can be found in the role of the Swedish Security Service, whose mission is to “protect the democratic system, the rights and freedoms of our citizens and national security”.91 No information has been found on the way national courts have interpreted this concept.
In light of the above, the concept of ‘national security’ seems to be either absent from, or very loosely defined by, EUMS' national legal systems. The table in Annex 3 shows that the conceptual features attributed to this term remain ‘open-ended’ even in those Member States with legal frameworks. There are several concepts which are often used or prescribed in EU Member States, yet there is no commonly held legal definition in any of the countries under examination that meets the legal certainty and “in accordance with the law” test (see Section 3 below). The changing notion of national security is fought over in the supranational judicial context and on the basis of 'rule of law' and 'division of powers' principles. This conceptual fuzziness leads to accountability deficits of the executive and intelligence communities described in the following section.
The notion of national security becomes more complex in the context of systems of ‘mutual respect’ of protected secrets with third countries such as the US. The Snowden revelations have posed an interesting question in relation to the concept of ‘national security’: ‘Whose’ security? Is the national security of third countries part of the national security of EUMS? The possible violations of the rule of law and fundamental rights linked to large-scale surveillance affect the security of the Union, its Member States, and EU citizens and residents. They also bypass the use of established channels of mutual legal assistance between the EU and third countries such as the US. A key issue is therefore the way in which these mutual respect regimes actually undermine notions of national security and the common internal security of the Union as a whole.
90 See Regeringskansliet (2009) Public Access to Information and Secrecy Act: Information concerning public access to information and secrecy legislation etc., available in English at www.government.se/content/
1/c6/13/13/97/aa5c1d4c.pdf.
91 See www.sakerhetspolisen.se/en/swedish-security-service/about-us.html.