Secrecy as Counter-Terrorism: How should the European Court of Human Rights respond?

The extensive growth in bi- and multi-lateral intelligence gathering, processing and information sharing has become one of the most enduring legacies of the events of 9/11. What can, by now, be described as entrenched ‘information intoxication’ of security agencies has not only resulted in operational changes within the intelligence community but has also led to significant modifications within traditional judicial procedures. In recent years, secret intelligence evidence is increasingly being heard behind closed doors in the United Kingdom and the Netherlands.
What this paper proposes is to critically assess key aspects of these developments with reference to the jurisprudence of the European Court of Human Rights. It will be argued that the regularised use of secret intelligence evidence and the damaging constitutional impact of excessive judicial deference in counter-terrorism cases endangers the existing European Public Order and may, to an extent, have already altered it.