Law and Order: Executive Intent
Suzannah Morris explores the role of the judiciary in protecting human rights and restraining executive power in the fight against terrorism.
The Universal Declaration of Human Rights (UDHR) is the world’s most translated document. And rightly so. The Declaration represents the first global expression of rights to which all human beings, regardless of their circumstances, are entitled. With the Declaration celebrating its 60th anniversary in 2008, it is easy to profess the importance of human rights. Indeed, all statesmen and women, even those whose countries have questionable human rights records, boldly assert their support for them.
It is difficult, however, to ensure the promotion and protection of rights during circumstances of armed conflict, natural disaster or terrorism. Nonetheless, it is during these emergencies that human rights need the most protection.
“The judiciary … must monitor two parties: those perpetrating the crimes and an executive seeking to act beyond its mandate.”
As Lord Hoffmann noted, “the real threat to the life of the nation is not the individual terrorist attacks, but rather the arbitrary exercises of executive power”. However tempting, popular or convenient it is for a government to curtail individual liberties, it should be resisted in all but the most urgent cases. This is where the judiciary has an important role to play. Upholding the rule of law and fundamental human rights in what seems to be a situation of chaos is essential to ensuring that terrorists do not achieve their ultimate objectives.
The world changed after September 11, 2001. Not just because a tragic event occurred, but because the fear of terrorist attacks became personalised and popularised. Subsequent events in Madrid, London and Indonesia exacerbated this fear. The detention of terrorists following the events of September 11 has generated significant political, judicial and media debate. Anti-terror laws are simultaneously aimed at the difficult tasks of trying to protect the community from an attack, and punishing the perpetrators. As Paul Wilkinson from the London Times commented, “fighting terrorism is like being a goalkeeper. You can make a hundred brilliant saves but the only shot that people remember is the one that gets past you”.
What has the response been?
Executive action taken to protect citizens from an enemy that is difficult to identify, and difficult to defend against, has been under intense scrutiny. The internment of foreign nationals, extraordinary surveillance powers and indefinite detention, are all measures that have been used by governments to defend the community. They form part of an alarming pattern. Historians have long observed that there is reason to expect, in general, that in times of crisis, executive leaders will overestimate the population’s security needs and discount the value of liberty.
“However tempting it is to curtail individual liberties, it should be resisted in all but the most urgent cases.”
Terrorist attacks, by their very nature, are targeted at civilian infrastructure, governments and the rule of law. The proper functioning of courts is essential in order to uphold this rule. It is an understandably delicate balance. Give too much lenience to government and watch fundamental human rights erode, albeit gradually. Come down too harshly and you restrict the ability of the Executive to effectively target current threats and their root causes. While the Executive is prone to overestimating the population’s security needs, or gambling its political capital on the support of the public in introducing unpopular reform, the community places its faith in the courts to maintain reason and judgment.
What is at stake?
Liberty is one of the fundamental tenets of the human rights regime. The UDHR, as well as the International Covenant on Civil Political Rights, prohibit arbitrary detention. Indefinite detention, however, is often the instinctive reaction of many states facing terrorist threats. This short-term solution does little to prevent future threats of terrorist attacks, as terror networks are far larger than one person. Furthermore, it ignores the role that the suppression of human rights can play in fuelling further attacks against the state.
The protection and promotion of human rights and the restraint of arbitrary exercises of executive power have an important role to play in that long-term solution. This illustrates the fallacy of the justification for recasting individual rights to benefit the community. As Benjamin Franklin observed, “those who give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety”.
Both in the United States and the United Kingdom, appeal courts have been faced with cases involving Executives attempting to restrict liberty by implementing forms of indefinite detention. In the United States, the Supreme Court was faced with a constitutional case concerning the availability of habeas corpus. In the House of Lords, UK legislation was measured against the European Convention on Human Rights.
Recent United States jurisprudence centres on cases arising from Guantanamo Bay. The U.S. controlled Cuban enclave has been a lightning rod for the debate concerning individual rights versus community protection. The decision of the Supreme Court in the consolidated cases of Boumediene and Al Odah in June 2008 represents the latest judicial ruling in the area.
Six-and-a-half years after the United States began transporting alleged Taliban and Al-Qaeda members from countries such as Afghanistan, Bosnia-Herzegovina and Egypt to Guantanamo, the Supreme Court held in a 5-4 opinion that aliens designated as enemy combatants and detained at the U.S. Naval Station in Guantanamo Bay do have the constitutional privilege of habeas corpus.
“The right of habeas corpus is one of the most basic principles of liberty in the Anglo-American tradition.”
The decision of Boumediene follows six years of contentious litigation. In Rasul v Bush (2004), the Supreme Court originally held that the detainees had a right to habeas corpus. However, the Bush Administration later ousted the jurisdiction of District Courts to hear habeas corpus claims.
The Supreme Court may have been dealing with certain American constitutional entitlements to be afforded to detainees, but the right of habeas corpus is one of the most basic principles of liberty in the Anglo-American tradition. Major General Jay Hood, former Commander at Guantanamo Bay, admitted the possibility of innocent individuals being detained. Innocents remained at the base, he contended, because “nobody wants to be the one to sign the release papers … there is no muscle in the system”.
The immediate impact of the decision is that detainees at Guantanamo may petition United States courts for habeas reviews of the circumstances of their detention. The main criticism of this decision has been that it places ‘military decisions’ in the hands of a judiciary that is unfamiliar with military issues. Had the Guantanamo Bay commissions established by the 2006 Military Commission Act allowed the proper exercise of habeas corpus rights, this might be a valid argument. As these Commissions fall short of the requisite standards of due process, however, they cannot, and should not, be seen as providing the right of habeas corpus.
The U.S. presidential candidates are acutely aware of the damage that Guantanamo Bay has done to the United States at home and abroad. Curiously, they have both come out on different sides of this issue. Barack Obama recently argued that habeas corpus is the “essence of who we are” and we should do “all we can to restore it”. John McCain, himself a former prisoner of war, argued that the case belongs on the list as “one of the worst decisions in the history of this country”. His concern is that “courts will be flooded with so-called ‘habeas corpus suits’ against the government, whether it be about the diet or about the reading material”. This is a surprising position, given McCain’s own, personal story.
“Upholding the rule of law is essential to ensuring that terrorists do not achieve their ultimate objectives.”
Across the Atlantic, the House of Lords was considering similar anti-terror legislation. Under the Anti-Terrorism, Crime and Security Act 2001 (ATCSA), foreign nationals who were “suspected international terrorists”, could be subject to periods of indefinite detention, yet could not be deported. By granting powers of indefinite detention to the Home Secretary, the UK Government chose to derogate from its obligations under Article 5 of the European Convention on Human Rights. Nine detainees of the Belmarsh prison (none of whom had been the subject of a criminal charge) challenged the lawfulness of their detention under the ATCSA. For only the second time in its history, the House of Lords constituted a bench of nine Law Lords to hear the case.
In December 2004, the House of Lords judged this system to be incompatible with the European Convention. In considering the case, the Law Lords considered the propriety of affording the executive a “wide margin of appreciation”. While maintaining a near monopoly on the ability to determine the extent of the threat, it was apparent that the court still had a role to play in scrutinising the proportionality of the government’s response. The decision may not have attracted as much attention as Guantanamo Bay jurisprudence, but it reaffirms the importance of maintaining a check on execution action, even during times of terror. These checks and balances are of particular importance when human rights are the casualty of executive action. As Lord Scott noted, indefinite detention on undisclosed grounds was the “stuff of nightmares”, reminiscent of a Stalinist regime.
The Supreme Court and the House of Lords both acted to ensure that executive action was consistent with fundamental human rights and the rule of law. The judiciary can be seen as a peacekeeper in the ‘war on terror’. It must monitor two parties: those perpetrating the crimes and an executive seeking to act beyond its mandate.
For some, the immediate need for protection satisfies the argument that rights should be suppressed. However, abrogating the responsibilities and principles that underpin our understanding of democracy and human rights causes more lasting damage. It is not the damage caused directly by terrorist attacks that should be feared. It is the effect that these attacks have on our commitment to the universality of human rights that is more concerning.
