Britain's State of Emergency

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.