A/HRC/22/52 also operates “as a deterrent to prevent new violations, and to uphold the rule of law and public trust in the justice system”.93 39. Legitimate national security considerations do not include governmental interests and activities that constitute grave crimes under international human rights law, let alone policies that are precisely calculated to evade the operation of human rights law.94 The European Court of Human Rights in the El-Masri case noted that an unjustifiably broad interpretation of State secret privilege had been asserted by the United States Government in proceedings before United States courts in that case, and that the same approach had led the authorities of the former Yugoslav Republic of Macedonia to hide the truth.95 In the context of the secret detention, rendition and torture programme of the Bush-era CIA, the Court rightly concluded that the concept of State secrets “has often been invoked to obstruct the search for the truth”.96 40. This phenomenon, which constitutes a serious abuse of public power, has a long pedigree in South America, where national security claims have frequently been advanced in an attempt to prevent judicial scrutiny of systematic human rights violations. Based on its extensive experience of dealing with such claims, the Inter-American Court of Human Rights has developed a robust response, holding that “public bodies cannot shield themselves behind the protective cloak of official secrets to avoid or obstruct the investigation of illegal acts ascribed to members of its own bodies”.97 The Court has held that in such cases claims to avoid disclosure on the grounds of national security “may be considered an attempt to privilege the „clandestinity‟ of the Executive branch and to perpetuate impunity”.98 41. The Special Rapporteur recalls the well-settled principle that allegations of Statesanctioned systematic human rights violations in the counter-terrorism context must be subjected to penetrating scrutiny by independent judicial, quasi-judicial and/or parliamentary oversight mechanisms that have unfettered access to all classified information.99 Any claim to withhold publication of evidence on national security grounds 93 94 95 96 97 98 99 16 Council of Europe Guidelines on Eradicating Impunity, op. cit., footnote 86. Observations on behalf of the High Commissioner for Human Rights to the ECtHR in El-Masri, op. cit., footnote 26, Geneva, 11 March 2011, at para. 38. A particularly egregious illustration of this is the practice of the Military Commissions in Guantanamo Bay to treat evidence confirming the torture of “high-value detainees” by the CIA as “classified information” on the spurious ground that the accused, having been subjected to waterboarding and other forms of torture, are thereby privy to information about classified CIA interrogation techniques which they cannot be permitted to reveal, in any proceeding open to the public, even to the extent of preventing their attorneys from providing the accused with Government classified materials about the ill-treatment to which they were subjected. See e.g. United States v. Mohammad, Appellate Exhibit 013AA, Amended Protective Order #1 (To Prevent Against Disclosure of National Security Information), ¶¶ 2g(4)-(5), dtd Feb. 9, 2013, “observations and experiences of an accused with respect to” their treatment by the CIA remains classified, such as details of their capture, information that would tend to reveal the foreign countries involved, the names and identifies of the persons involved, the enhanced interrogation techniques applied, and any descriptions of the confinement conditions This absurdist and amoral legal analysis carries the implication that the use of torture by public officials is ipso facto privileged from public disclosure. El-Masri, op. cit., footnote 26, paras. 191 to 193. Ibid. Myrna Mack Chang, op. cit., footnote 30, para. 181. Ibid. United Nations Joint Study on Secret Detention, op. cit., footnote 1, para. 292(d); Marty III, op. cit., footnote 15; Flautre Report, op. cit., footnote 15, para. 3; Best Practice for Intelligence Oversight, op. cit., footnote 44, para. 15; United Nations Manual on the Effective Investigation and Documentation