Since the events of 9/11 terrorism has become a prominent issue within society, especially in the U. S and Britain. It has prompted strong emotions among the public which, consequently has led to various debates on how best to combat the matter. One idea is that the government should be allowed to detain terrorists indefinitely, without charge. It is this aspect which I will be addressing in this essay, and asking the question should the government have the right to do this?
The power to detain terrorist suspects has been used by several countries, such as the UK who first used it to detain terrorists in Ireland using the Realm Act 19141 and the U. S using the Patriot Acts2. However this method of tackling terrorism has been criticised by some as being ineffective 'the government have [sic] long held the view that internment does not represent an effective counter-terrorism measure… The power of internment has been shown to be counter-productive in terms of the tensions and divisions which it creates.
It has been commented that cases like Ireland,4 which involved detained terrorist suspects being tortured 'republican martyrs would hinder the British Government's attempts to reach a political settlement with the IRA'. 5 In other words detaining terrorists might encourage those to continue to fight their cause and create sympathy among others, justifying what they are doing. Furthermore, it has been argued that detaining suspects most of the time does not result in a charge being held against them.
This was the main point raised when rejecting the British government's proposal to extend the length they could hold terrorist suspects, from 28 to 42 days. Although these are persuasive views, there are some compelling arguments for detaining terrorist suspects. One being their removal from society would reduce the risk of further harm being committed towards the public, and the extended time limit would allow the government to adequately sift through sensitive pieces of information, in order to determine if they are a threat.
It has been said that by allowing the government to exercise such a power and enacting such a law would undermine the rule of law. In particular the proposition that the government should act under law and not abuse their power would be questionable in these circumstances. In considering the Bush administration's use of power in Guantanamo Bay, Allen remarked that 'Such an assertion of absolute unreviewable executive authority challenges the very foundations on which the rule of law is built'.
6 But academics such as Dicey7have stated that there are times where the state is allowed to act and disobey the traditional theory of the rule of law, because without unlawful action the state, and consequently law itself might have been overthrown. 'There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken… The ministry must break the law and trust for protection to an act of indemnity. 8 One question posed is whether the judiciary should have a more involved role.
The most notable arguments in favour of the government making such decisions are outlined by Victor v. Ramraj9, who states that there are three typical arguments. The first being that the executive is in a better position to assess the risk associated with terrorism. This could be true to some extent, as the government has the ability to access sensitive information that the public. However, there is no exact science on how to best deal with such events and the government are also liable in making errors in judgment.
Furthermore, events such as 9/11 causes a lot more pressure from the public on the government to act with the possible consequence of rushed action viewed from political perception, instead of a well thought out plan appropriate to the threat. For example, the Anti-Terrorism, Crime and Security Act 2001 was passed after just sixteen hours of debate, which arguably isn't really a sufficient amount of time for such a controversial piece of legislation.
Philip Pettit puts it, 'a politics of passion in which they appear as the only individual or the only group really concerned about the sort of horrible crime in question' and can thus let loose 'a rule of knee-jerk emotional politics that works systematically against the common good'. 10 Arguably when considering issues of this kind, a far more effective outcome could be achieved if legislation is subjected to more intense judicial scrutiny.
When remarking on who should make this kind of decision, Lord Bassam of Brighton stated that 'fundamentally we believe that it is the right in principle that matters relating to the liberty of the individual should be in the hands of the judiciary. '11 The second argument he lays out is that the government have earned trust, so therefore should be allowed more scope. This is certainly true in respect to Parliament, who have been democratically elected as opposed to the judiciary.
However, it should be remembered although democratically elected, there were still a minority who did not vote for them and even if they should be given trust, the government is still capable of abusing their power. 'There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts'. 12 The third argument for supporting the notion that the executive should deal with terrorism, rather than the judiciary is that extraordinary circumstances, call for extraordinary powers.
Oren Gross comments that immediately after an emergency has occurred, the executive will often act illegally or extra-constitutionally. 13 In these situations, the conduct of the executive cannot be properly judged by the same constitutional standards, and should instead be subject to democratic approval because of that fact. In response to this view, it has been argued that the executive shouldn't have the final say, in such a fearful and emotionally charged atmosphere, as there is a likelihood of judgments about risk being distorted.
The above arguments seem to suggest that the judiciary, should have a degree of input when it comes to such an important issue, as it is essential that the government have a form of check and balances on the power allocated to them, which does not support the idea that it should only be left to the government to make decisions on the subject of indefinite detention of terror suspects.
Yet it should still be noted that there are objections to judicial review, with arguments of the judiciary having less knowledge and expertise than the executive with respects to national security as highlighted earlier. In the case of Liversidge v Anderson14 it was noted by Lord Wright that, 'a court of law could not have before it the information on which the secretary of state acts, still less the background of statecraft and national policy which is what must determine the action which he takes on it.
'A similar view was taken in Hamdi v Rumsfield by Justice Thomas when considering whether the courts should have the power to review the executive's decision to detain, without trial a suspected 'enemy combatant'. 'The question of whether Hamdi is an enemy combatant is of a kind for which the Judiciary has neither aptitude, facilities nor responsibility. '