Balkinization

Britain's State of Emergency

Kim Lane Scheppele

Americans awoke Thursday morning to the horrific news of another mass terror attack – this time in London. Like the terrorist attack in Madrid in March 2004, timed for the eve of the Spanish election, this attack also seems designed to create a political backlash by shaking the G8 summit in Edinburgh.

For those caught up and injured or for the families and friends of those killed by the bombs that ripped through the city during morning rush hour, 7/7 will become a very personal marker of tragedy. For those watching from afar, 7/7 has already become another dreadful reminder that terrorism remains a constant threat in many parts of the world. 7/7 should remind us, if we ever needed reminding, that targeting civilians can never be tolerated, justified or excused.

Given the horrific nature of terrorist attacks, it may not be surprising that Britain has done the following things:

1. The United Kingdom declared a state of emergency.

2. The UK derogated from Article 5 of the European Convention on Human Rights, allowing it to indefinitely detain suspected international terrorists without charges or trial.

3. The London Metropolitan Police has used its newly granted cordon power to claim authority to search without a warrant any person or vehicle in Metropolitan London.

But none of those things were done today.

Instead, Britain declared a state of emergency on 13 November 2001 through The Human Rights Act 1998 (Designated Derogation) Order 2001. The emergency permitted the UK to derogate from its obligations under the European Convention on Human Rights in order to pass the Anti-terrorism, Crime and Security Bill 2001. This law gave the Home Secretary power to declare that he suspected particular aliens resident in Britain to be international terrorists (Art. 21 of the law) and to detain them indefinitely without charges or trial (Art. 23 of the law). Seventeen persons were so detained before the Law Lords (Britain’s highest court) declared in December 2004 that these sections of the anti-terrorism act were incompatible with the Human Rights Act. To fix the incompatibility, the British Parliament passed The Prevention of Terrorism Bill 2005 that allowed all those who had been detained to go on being detained without charges or trial under another legal rubric that superficially met the Law Lords’ objections. The new law now permits citizens as well as aliens to be held indefinitely without charges or trial if the Home Secretary suspects them to be terrorists.

Oh yes, and the London Metropolitan Police cordoned off the its entire jurisdiction from 13 August – 10 September 2003, giving itself the power to inspect any person or vehicle in Metropolitan London without a warrant for nearly a month. And this practice was upheld by R (on the application of Gillan and another) v Metropolitan Police Commissioner and another, [2005] 1 All ER 970.

Why bring up Britain’s post-9/11 anti-terrorism policies on a tragic day like this? Because Britain has already reacted in a legally extreme way to fight terrorism. It has consistently adopted domestic policies even harsher than those in the United States after 9/11. It has consistently decided to compromise basic civil liberties to fight terrorism – and with some of the most draconian laws available in any democracy to ward off terrorist attacks, a major terrorist attack still occurred.

A shattered and shocked country may demand even harsher laws after it has been attacked. But the lesson of Britain’s compromise of civil liberties so far is that we should all be wary of the deal we are promised in such compromises – that we will win safety in exchange for our rights. Sadly, such a deal tends to result in neither the guarantee of safety nor the preservation of rights.

My heart goes out to all of those who have been devastated by the London attacks. We are all in this together - and we must find less constitutionally destructive ways to address the threats we face.

Posted 1:01 AM by Kim Lane Scheppele [link]

Comments:

Although I find Ms. Scheppele argument quite interesting, I must say that there is a subtle distinction to be made that I believe Ms. Scheppele recognizes but adroitly avoids making apparent. That is, the simple fact that Britain suffered a terrorist attack yesterday does not mean that the sacrifice of civil liberties was unsuccessful - or that the "deal", so to speak, was not kept. Instead, the harsh domestic policies adopted by Britain may have directly led to the avoidance of terrorist attacks that otherwise would have happened - with yesterday's attack being an exception.
The real question is whether one demands perfect deterrence and complete security from any and all terrorist attacks in exchange for the sacrifice of civil liberties or if one is satisfied with being marginally safer due to a sacrifice of civil liberties.
I concede that all these arguments require a sounder empirical basis, as we do not yet know what real effect these policies have had in deterring terrorist attacks. Nevertheless, Ms. Scheppele's article highlights the need for reasoned and restrained thinking by legislators that is so often absent in the wake of events like these.

# posted by

henry bemis : 10:34 AM

Good points. Britain has claimed to have warded off seven or eight terrorist attacks before yesterday's horrible events, and if they had in fact done so, that might go some way toward justifying the emergency powers they are using. But the British government has presented little public evidence of what most of those attacks might have been.

The part we have been able to see doesn't inspire confidence in their judgment of what constitutes a real plot, however. Britain's showcase post-9/11 terrorism prosecutions have fizzled. The leading post-9/11 UK terrorism case involved nine men charged with making the deadly poison ricin in their London flat -- for use in a terrorist attack, or so the prosecution argued. Before trial, charges against four were dropped for lack of evidence. After a long trial of the others, four were acquitted altogether by a jury. The fifth defendant was found to have been making something substantially less toxic than ricin, and the jury found that he was not linked to Islamic terrorism in any event. That was the public, flagship, foiled terrorism plot. No ricin was found, in the end. And no connection to terrorism was found either.

If those are the sorts of plots that have been foiled before yesterday's, then it is hard to see the successes.

But there are real dangers in the compromises of civil liberties that Britain has made -- not only for those whose civil liberties are infringed, but also for any society trying to prevent terrorism.

By allowing the police to collect information more indiscriminately, chances are they will do just that -- collect information indiscriminately. Under the best of circumstances, a government's hunt for terrorists is akin to the hunt for needles in a haystack. But when legal retrictions are loosened, the police and security services are tempted (to continue the metaphor) to make the haystack of irrelevant information bigger before they begin to look. Only good, targeted detective work, with high legal standards in place to guarantee that the police and security services limit themselves to tracking real leads based on demonstrable evidence, will produce successes. The illusion that one is doing something by holding suspicious people without having to show a clear basis for doing so or by searching everyone and everything indiscriminately does not actually produce results in the fight against terrorism.

That's why I believe that infringing civil liberties to fight terrorism may in fact put us more in peril.

# posted by

Kim Lane Scheppele : 6:05 PM