A View from Abroad
A response to David Coles Their Liberties, Our Security
8 When the United States sneezes, the world develops a cold. The passing of the USA PATRIOT Act by the most powerful liberal democratic nation sends a clear message to the rest of the world. President Bush declared that states are either with us or against us. One result was a global legislative stampede to introduce draconian antiterrorist legislation. For example, Russia, the Philippines, Israel, Jordan, Uzbekistan, China, Egypt, India, Canada, New Zealand, South Africa, Australia, the European Union, and the United Kingdom fell quickly into line with hardcore legislation that reflected the Patriot Act. But does the U.S. legislation reflect the spirit of the rule of law, and will this legislation be effective in deterring terrorism and catching terrorists? In other words, is good governance challenged, are minorities at risk, is xenophobia encouraged, and can antiterrorist legislation produce real social harm?
The U.K. has lengthy experience of domestic terrorism. It is called the Irish question. A brief review offers comparative lessons for the U.S. executive branch, which has been demanding domestic and global action, new legislation, and increased powers to state and law-enforcement agencies. The toll of deaths and injuries in Northern Ireland is shocking. Official figures up to October 2002 indicate 3523 deaths and 40,000 injuries as a result of terrorist actions. Between 1972 and 1992 there were 41,000 shootings and bombings, in a community of 1.67 million people. No community, street or household has been left untouched by the violence.
U.K. legal responses included the introduction of emergency legislation both in Northern Ireland and in mainland Britain. For example, in 1974 the Prevention of Terrorism (Temporary Provisions) Act was passed in Westminster. Home Secretary Roy Jenkins described it as draconian. In 2001, when the U.K.s response to the Patriot Actthe Anti-Terrorism, Crime and Security Bill, (ATCSA)was debated in the House of Lords, Lord Jenkins said, If I had been told at that time that the Act could still be on the statute book twenty years later, I would have been horrified . . . it is not one of the legislative measures of which I can be most proud. The 1974 act was rushed through the houses of Parliament with a mere seventeen hours of debate. One member of Parliament described it as vengeance legislation. Indeed, no politician with an eye on reelection dared vote against the bill.
The 1974 act commenced as a temporary measure, renewed annually until 1998 when it became permanent, thus making emergency responses to terrorism a permanent fixture. The abnormal was normalised. Legislative responses included to the right to intern people without trial and without an agreed release date. However, internment was repealed in 1998. Douglas Hogg, M.P., said, We normally get the wrong people; it is unjust; we depart from the moral high ground and we alienate folks. It is a jolly bad policy to pursue. The ATCSA 2001 reintroduces internment. It permits foreign nationals to be held in prison without charge and without a release date. Their cases are heard in secret in a special court. On the grounds of national security, the defense counsel is not made aware of evidence against the accused. In October 2002 the Court of Appeal upheld the home secretarys right to so intern.
Northern Ireland operates criminal courts in which the jury is dispensed with and the judge sits alone in terrorist trials. Anonymous witnesses testify from behind screens, and convicted criminals have been used as supergrasses to give prosecution evidence in court. Internal banishment, preventing U.K. citizens domiciled in Northern Ireland from entering Britain from Northern Ireland, was a feature of the 1974 act. Police are given widely extended powers to hold and interrogate suspects. The form of due process is observed but its spirit is sacrificed in the fight against terrorism. Major miscarriages of justice have occurred involving alleged Irish terrorists. The result is that the criminal process and the police service are themselves tainted by the legislative responses of the state.
But do these laws deter or catch terrorists? In a secretive state, evidence is scarce. However, the home secretary announced in July 2002 that 137 arrests have been made since September 11 under the ATSCA 2001. To date no convictions have been achieved. Perhaps this is not surprising. Figures on the use of the Criminal Justice Act (terrorism and conspiracy) of 1998 indicate that no one has been arrested or charged under that emergency law, which was also pushed through Parliament in 27 hours after the Omagh bombing in Northern Ireland. Tony Benn, M.P., said during the debate, What a way to treat Parliament . . . as though we were the Supreme Soviet, simply summoned to carry through the instructions of the Central Committee.
A lesson for the United States from Northern Ireland is that after decades of emergency legislation, paramilitary policing, and covert and overt army and intelligence involvement, the terrorist threat has diminished not because of overwhelming state force but through interparty dialogue and the commitment to social justice. Some people believe that law can offer social justice through social engineering or can minimally help establish and maintain a well-regulated society. Such outcomes might be possible when the traditional balance of power between the executive, legislature, and judiciary is operational. In times of emergency such as war (however defined), the executive seeks to dominate, and it is at such moments that good governance is at its greatest risk. The United States is experiencing such a crisis of constitutionalism that also resonates in other countries. The executive acting alone will not resolve this crisis, nor will it be resolved by force. <
An extended version of this response, titled September 11th and Good Governance will appear in the Winter 2002 issue of the Northern Ireland Legal Quarterly (published by the Law Faculty, Queens University, Belfast). An electronic version can be obtained now from the author (firstname.lastname@example.org).
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Originally published in the December 2002/January 2003 issue of Boston Review