Balkinization  

Monday, July 11, 2005

Legal Mistakes -- Part II

Kim Lane Scheppele

In my earlier post, I picked exclusively on the New York Times for publishing articles about British (or European) anti-terrorism policy that contained either flat-out mistakes or misleading inferences about those policies.

Just so that I’m not picking only on one newspaper, here are some other examples:

From the LA Times, in a 10 July article headlined Diligent, Tolerant, Targeted, Greg Miller and Ken Silverstein write about Britain’s anti-terrorism policy:

But other foreign radicals deemed dangerous by the government were released from prison after Britain's highest court ruled late last year that foreigners considered a security risk could not be imprisoned indefinitely without trial, a major setback to an emergency anti-terrorism law put in place by Prime Minister Tony Blair's government after Sept. 11.


Lord Leonard Hoffman, one of the judges on the court, said at the time that the law itself might constitute more of a threat to the British way of life than terrorism. "It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention," he wrote.


Literally true, misleading in implication. Three months after the Law Lords' judgment, the aliens who had been detained without charges or trial were in fact literally released from Belmarsh Prison. But they were not set free. Instead, under the new anti-terrorism law passed in February, these detainees were immediately placed under indefinite house arrest. Most are allowed neither to leave their homes nor to have unapproved visitors. Their calls are monitored; most are not allowed to use the Internet. And while being at home is no doubt better than being in prison, none of the detainees were actually given their freedom. Lord Hoffman’s plaintive objection to indefinite detention without charges or trial still could be made today.

Occasionally, the American press makes British policies sound harsh, but undershoots just how truly draconian they are. Take this example from The Washington Post in an 11 July story by Glenn Frankel:

Under Britain's anti-terrorism laws, enacted after the Sept. 11, 2001, attacks in New York and Washington, police can hold suspects up to 14 days without charge.


Wrong. Under the Prevention of Terrorism Bill 2005,the Home Secretary (Justice Minister) can detain someone whom he suspects is a terrorist. As long as an independent judge agrees that the Home Secretary had reasonable grounds for doing so, the person can be held for up to six months without charges or trial. If the Home Secretary wants to restrict a suspected terrorists’ rights or privileges short of detaining him (for example, forbidding him to associate with specific persons, or requiring him to stay away from particular locations, or requiring him to surrender his passport, or requiring him to allow his home to be searched, or requiring him to permit certain things to be removed from his home), then those restrictions – with judicial approval -- can last up to 12 months, infinitely renewable, without charges or trial. Oh yes, and this new law applies not just to aliens, but to citizens as well.

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