Civil liberties and the “war on terror”

The experience of the hundreds of detainees held without charge or trial by the United States in its military base at Guantanamo Bay in Cuba has become notorious around the world. Less known is the fact that in Britain, America’s junior partner in the “war on terror”, it is echoed in a place called Belmarsh Prison, in south London. There, the Anti-Terrorism, Crime and Security Act (ATCSA) passed in December 2001 has consigned fourteen men suspected but not charged with terrorist offences to an equivalent legal limbo.

How should democratic societies respond to the challenge of terrorism? openDemocracy’s online debate between eight Europe-based writers explores this question. See “Terrorism, democracy and Muslims after the Madrid bombs” (March 2004)

What is happening at Belmarsh raises fundamental questions of law, justice and liberty.

The duty of governments to protect their citizens is rooted in ancient principle and modern democratic convention alike. It has never been better expressed than in the Latin motto salus populi suprema lex (the good of the people is the supreme law).

Ministers of a democratic government who are given responsibility for public security and the prevention of acts of terror need authority to take swift and forceful action – sanctioned by law and accountable to parliamentary and public scrutiny – against imminent threats to life and limb. It is a melancholy fact of political life that such ministers, whatever their history and previous commitments, tend once in office to become routinely impatient of legal processes and hostile to civil liberties concerns which they come to see as obstructive.

The governing wisdom

Since 1999, Britain’s Home Secretary – what in most countries would be “interior minister” – has been David Blunkett, the former leader of the northern English city of Sheffield, whose political rise has been all the more impressive because of his blindness. In his current position, and as the “war on terror” has intensified since the attacks on Afghanistan in October 2001, he has been increasingly forthright in denouncing judges who restrict his freedom to arrest and lock up those whom he believes threaten Britain’s security.

The problem David Blunkett faces is that the judges, and the lawyers who present evidence to them, have an independent function as the guardians of the rule of law – a law that binds ministers also. The opinions of ministers cannot displace this responsibility.

After 9/11 there was a flurry of legislation in the United States and in Britain designed to reassure the public that their governments had all the power they needed to bring the perpetrators to justice and to prevent a repetition of the terrorist attacks. The Patriot Act in the US gave paramount powers to the executive; the British parallel was the Anti-Terrorism, Crime and Security Act. At such a time of fear – a period we are still living through – civil liberties are in jeopardy because the public is easily persuaded that it is necessary to abrogate them. This is what both these measures achieved.

In Britain, the overriding authority of the European Human Rights Convention (EHRC) had to be applied directly in British courts after the convention was incorporated into United Kingdom law in 1998, but the government retained power to opt out of some of its requirements in a time of national emergency. Article 5, which prohibits detention without trial, is one of these, but Article 3, which prohibits torture and inhuman or degrading treatment, is not.

British immigration law has always given power to the government to exclude non-citizens from entry to the country on security grounds – where their presence in the UK was held to be “not conducive to the public good”. This power was long exercised by the Home Secretary outside any legal process and was used for transparently political reasons. Rudi Dutschke, a German student activist, was deported in 1971 under this provision; the Americans, Mark Hosenball and Philip Agee, in 1977; large numbers of Iraqis and Kuwaitis before the Gulf war in 1990. In all cases, there was no right of appeal to a court. Instead the deportee was allowed to make representations to a committee (which became known as the “Three Wise Men”) who could then advise the Home Secretary confidentially to reconsider his decision.

It was obvious that the Three Wise Men were no substitute for a proper right of appeal. They could only give advice and the Home Secretary was free to ignore it. Moreover, the prospective deportee could not get access to the evidence against him; nor did he have legal representation at a hearing.

After the 1997 election which brought them to power, Labour made some changes to this procedure. The Three Wise Men were given a status closer to that of a court: the “Special Immigration Appeals Commission” (Siac). But the function of Siac was essentially the same: to review decisions to deport non-UK citizens whose presence under his jurisdiction the Home Secretary thought undesirable. Where British citizens were concerned, the question of deportation did not arise. They could not be deported.

Even before 9/11 the image of the terrorist began to mould government policy and legal measures were directed at this new menace. The ATCSA gave the Home Secretary power to “certify” individuals as “suspected international terrorists”. The certificate could be appealed to Siac but Siac could only cancel it if it found no reasonable grounds for suspicion of membership or links with a terrorist organisation.

A certified suspected international terrorist could be refused entry to the UK, deported, or detained.

But not every terrorist could be deported. There might not be another country which would accept him. Nor could he be deported to a country in which he faced torture, or inhuman or degrading treatment. That would violate Article 3 of the EHRC. But detaining him indefinitely in Britain would also breach the convention – this time Article 5, which protects personal liberty. Article 5 says that any person deprived of his liberty by arrest or detention is entitled to be put on trial within a reasonable time, or else released.

The British government did not want to put terrorist suspects on trial. Either the evidence was not strong enough to convict or producing it would reveal the identity of sources which would then be endangered.

There were three options: lock the suspects up indefinitely, allow them to go free, or change the procedural rules to enable them to be tried with the minimum risk to intelligence sources.

The first option could only be chosen if Britain opted out. “Derogation” from Article 5 requires “a public emergency threatening the life of the nation”, and that the derogation is limited to the “extent strictly required by the exigencies of the situation”. Although the Court of Appeal reversed a decision of Siac which held that the latter criterion had not been met, it is hard to see why derogation should be necessary when Article 5 could be complied with simply by putting the suspected terrorist on trial.

Along with Isabel Hilton and Juan García, Geoffrey Bindman discussed in openDemocracy the implications of the arrest in Britain of Chile’s former dictator Augusto Pinochet. See “Justice in the world’s light” (June 2001)

This issue may yet be decided by Britain’s upper chamber of parliament, the House of Lords, but meanwhile men have been held in Belmarsh prison for more than two years without charge or trial and without knowing how long they will remain there.

However, parliament had enough concern about the wide powers it was giving to the Home Secretary to fight the war against terrorism to build in a few safeguards. Regular reviews of the cases of individual detainees are required and a committee had to be set up to review the act within two years. And Siac was given a power to release detainees on bail.

A question of liberty

The review committee, which reported in December 2003, was a particularly strong one. It consisted entirely of Privy Councillors – those at the apex of the British political and legal establishment, including former cabinet ministers and a former senior law lord. It recommended in strong terms that the power allowing foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency; that there should be no distinction according to the origin or nationality of suspected terrorists; and that there should be no derogation from the fundamental rights protected by the European Human Rights Convention.

The committee pointed out that no other European country needed indefinite detention: other legal systems were capable of putting suspected terrorists on trial in a fair and proper manner.

The logic of the review committee’s recommendations is compelling. The prohibiting of indefinite detention is not a luxury to be surrendered in the face of terrorism – it is a matter of principle. But the case of one of the Belmarsh detainees, released on bail by Siac, demonstrates that it is also practical sense.

This man was suffering severe mental illness brought about by the uncertainty of his situation. The illness could, in the view of the doctor whose evidence was accepted by Siac, only be ameliorated by his release from prison. It is a reasonable inference that imprisonment for a finite period after a fair trial would not have a similar effect.

The government’s objections to putting suspects on trial could be met by procedural changes. The Siac bail decision should have led the Home Secretary to act swiftly to implement the changes recommended by the committee of Privy Councillors. Unfortunately, David Blunkett’s reaction was to condemn the Siac judges in abusive language and threaten to change the law to prevent future releases on bail. He should think again – or he should be replaced. Fundamental liberties must be cherished.