Curbing terror or menacing freedom?

Mar 11th 2005
From The Economist Global Agenda

Tony Blair and George Bush are facing challenges to their anti-terrorism measures, which they insist are necessary but which critics say threaten basic liberties

IN THE wake of the terrorist attacks of September 11th 2001, President George Bush and the British prime minister, Tony Blair, faced little opposition in arguing that tough measures had to be taken to counter the threat from al-Qaeda and other international terror groups, even if this meant compromising some basic civil liberties. Both countries rushed through new anti-terror laws and began interning suspects—America mainly at its military base at Guantánamo Bay in Cuba, and Britain mostly at Belmarsh high-security jail in London.

But, more than three years after the attacks, both leaders have recently suffered setbacks to their anti-terror policies. American and British judges have ruled that their governments cannot go on detaining suspects without giving them acceptable recourse to the courts. In the latest such ruling in America, last week, a judge found that Mr Bush had greatly exceeded his powers in continuing to detain without charge José Padilla, who is accused of conspiring to build a radioactive “dirty bomb”. And on Friday March 11th, Britain's two houses of Parliament continued in deadlock after an all-night battle of wills over a new anti-terror bill that the prime minister is trying to rush in, to replace the 2001 law. Just when it looked like Parliament was set to continue arguing all weekend, Mr Blair apparently gave in to his critics' main demand and agreed to give lawmakers a chance to rewrite the new legislation, a year from now.

Mr Blair was desperate for the bill to be made law by the weekend because the 2001 terrorism law, with its powers to continue detaining suspects, is due to expire on Monday as a result of a ruling by Britain's highest court, the Law Lords. To enact the 2001 law, the government had to become the first country to opt out of Article 5 of the European Convention on Human Rights, which enshrines the right to liberty. The convention allows such opt-outs only in cases of “war or public emergency threatening the life of the nation”. However, the Law Lords rejected the government’s claims that the current terrorist threat justified such an opt-out and thus struck down the detention powers in the law.

The first draft of Mr Blair's controversial new bill had proposed to replace indefinite detention without trial with a range of restrictions, including house arrest and curfews, that ministers would be able to impose on terror suspects. Mr Blair argued that such measures were indispensable, for instance in cases where suspects could not be prosecuted without revealing intelligence sources. However, amid fierce resistance, including from many members of the prime minister's own Labour Party, he was forced to agree that only judges, not politicians, will be able to impose such restraints.

Sunset, sunrise—but still no sunset clause

Nevertheless, Mr Blair continued to reject some of his opponents' remaining demands. In particular, he was adamant that there should be no “sunset clause” in the new law, triggering its automatic expiry within a year, thereby giving Parliament a chance to rewrite it from scratch. All he would concede, until Friday, was an annual review of the law, meaning that it would remain in force except in the unlikely event of Parliament voting expressly for its abolition.

In marathon debates throughout Thursday night and into Friday, the upper house, the Lords, repeatedly reinserted the sunset clause, only for the Commons, the lower house, to strike it out and throw the bill back down the corridor linking the two houses. While the politicians continued arguing, an appeals commission headed by a senior judge began freeing the terror suspects—all North African Muslims—on bail, subject to curfews or other conditions, using the old terrorism law that was due to expire.

Finally, on Friday afternoon, Mr Blair announced that Parliament would, after all, be given a genuine chance to amend the new law in a year's time, when he (assuming he wins the forthcoming elections) will present it with yet another anti-terrorism bill, replacing the one currently being argued over. Michael Howard, leader of the main opposition Conservative Party, said Mr Blair had conceded a “sunset clause in all but name” and declared victory. Whatever the case, the way was thus cleared for Conservative members of the Lords to let the draft law finally pass.

There is already a sunset clause affecting some of the most controversial measures in the Patriot Act, the terrorism law America passed after the September 11th attacks. Mr Bush is urging Congress to renew these measures, which include special powers for the FBI to obtain information about suspects. To help overcome considerable resistance to this in Congress, the president recently appointed as his new homeland-security secretary Michael Chertoff, a former judge with a record of speaking up for civil liberties.

While gearing up for a struggle to renew the Patriot Act, the Bush administration continues to battle with the courts over its detentions of more than 500 terror suspects, many now held for three years with no legal advice and no indication of whether they will be charged. Last June, the Supreme Court made three rulings that were a severe blow to Mr Bush’s detentions policy. First, the court ruled, prisoners at Guantánamo had the right to petition against their detention. Second, it decided that Yaser Hamdi, an American citizen captured in Afghanistan, may not be held indefinitely as an “enemy combatant” without any opportunity to face a court. And third, the court granted Mr Padilla another chance to have his case against detention heard in a lower court.

Mr Bush’s response to the first ruling was to create “combatant status review tribunals” to determine whether each Guantánamo inmate had been correctly classified as an “enemy combatant”. However, last month a federal court ruled that these tribunals were unconstitutional. The government, pointing out that another federal court had earlier come to the opposite conclusion, is now taking the matter to the Court of Appeals.

In response to the Supreme Court’s ruling on Mr Hamdi, the government felt obliged to release him and send him back to Saudi Arabia, where he had been living. Now it faces a trickier decision over Mr Padilla. Exercising the right the Supreme Court granted him, he has taken his case to a court in South Carolina, where he is being held. Last week, the judge in the case ordered that he be charged with a crime or set free within 45 days.

Mr Bush and Mr Blair are in a bind. They face strong challenges to their anti-terror measures from judges, lawmakers and civil-rights groups, while knowing that their public will judge them harshly if another big terror attack occurs. However, harsh anti-terror laws are no guarantee that terrorism will stop. Worse still, they risk doing more harm than good. This was the case with Britain’s old Prevention of Terrorism Act, which was used during the Northern Ireland conflict to detain large numbers of people, most of whom were not subsequently charged with a terrorism-related offence. The resentment that this caused among the province’s Catholic minority only served to sustain support for the IRA, not deter it. Similarly, long detentions without trial like those at Guantánamo and Belmarsh risk serving as recruiting-sergeants for the terror groups that the measures are aimed at curbing.

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