Doc. 11302 Report 304. One may legitimately ask how such reasoning can be reconciled with the fundamental principles of the rule of law. The case law of the United States Supreme Court cited in support of this wide interpretation of the state secrecy doctrine255 dates back to the 19th century and the worst periods of the Cold War, when there was an almost blind trust in the infallibility and incorruptibility of its secret services. It is therefore to be hoped that the United States Supreme Court will use the opportunity of the El-Masri case to take a fresh approach to and modernise the “state secrets doctrine”, to bring it into line with the principle of the separation of powers and the requirement for transparency in a genuinely democratic society. 305. In Fitzgerald,256another United States Court of Appeal rightly points out that “[w]hen the state secrets privilege is validly asserted, the result is unfairness to individual litigants – through the loss of important evidence or dismissal of a case – in order to protect a greater public value”. How can it be seriously argued that information establishing the responsibility of state officials in serious violations of human rights is of “a greater public value” deserving protection in a democratic society? 306. The principle of judicial self-restraint is certainly a good thing, but this is truly corrupted when it results in a denial by the judicial system of its own role, leading to impunity for the perpetrators of serious human rights violations. 307. Judges, prosecutors and lawyers cannot a priori be considered national security risks, any more than other agents of states themselves. If necessary to safeguard legitimate state secrets that may well be intertwined with illegitimate ones, judicial personnel participating in proceedings involving state secrets can be subjected to a specific clearing or vetting procedure, as is done in a number of jurisdictions, and placed under an obligation to maintain the secrecy of the information they are given access to.257 308. In order to ensure accountability, information pertaining to serious human rights violations committed by agents of the executive should not, and need not, be permitted to be shielded by the notion of state secrecy or national security. 309. What applies to courts must also apply to parliamentary committees of inquiry: the executive must not be allowed to thwart inquiries into its own possible wrongdoings by classifying relevant information. 7.1.3. The German Parliamentary Committee of Inquiry and the work of the prosecutors in Munich 7.1.3.1. The Bundestag Committee of Inquiry 310. The German Parliamentary Committee of Inquiry responsible for establishing the facts in the El-Masri case is emblematic. Of course the Bundestag’s decision to conduct a serious inquiry into the case of Mr ElMasri and into possibly reprehensible activities by the German special services is welcome. It is, however, regrettable that most members of the committee have to date been content to receive documentation that has been rendered very incomplete by government censorship. The committee has also frequently been quick to accept the reasons given by witnesses for refusing to give evidence: on each occasion, “state secrecy” or the so-called doctrine of exekutive Eigenverantwortung (the domain of the executive’s own responsibility, exempt from parliamentary scrutiny) has been accepted. It should also be made clear that the standing committee responsible for supervising the activities of the secret services (Parlamentarisches Kontrollgremium (PKG)) has access to secret information,258and that the Parliamentary Committee of Inquiry was granted access behind closed doors both to classified documents and to witness testimony on matters classified as secret. What is in dispute between majority and minority representatives is the extent to which parliamentarians can demand access to classified materials, and what use they can make of it in public if they consider that the matter in question requires their constituents to be informed. This matter needs clarification, generally and also for future reference. The Parliamentary Committee of Inquiry is fulfilling its supervisory remit in the 254. Court of Appeal (supra note 246) p. 12, with references to the United States Supreme Court’s Reynolds judgment (345 United States at 9). 255. The Reynolds case dates back to 1953; another leading case (Totten v. United States, 92 United States 105) to 1875, and the United States v. Nixon (418 United States 683) to 1974; Chi.& S. Air Lines, Inc., v. Waterman S.S.Corp. (333 United States 103, 111) to 1972. 256. 776 F.2d at 1238 n.3 (cited by the Court of Appeal in the El-Masri case, supra note 246, p. 23). 257. In the same way as the procedure described by the 4th Circuit Court of Appeals (supra note 246, pp. 11-12 and 21-22) for the judicial review of the issue whether the information sought to be protected qualifies as privileged under the state secrets doctrine. 258. On the other hand, this body has no power to summon witnesses. The government is under an obligation to “report” to the PKG, but there is no statutory obligation (subject to criminal penalty) like that which exists for witnesses summoned by a committee of inquiry, for the executive’s representatives on the PKG to tell the truth. 59