[Mb-civic] Curbing terror or menacing freedom?

Wed Mar 9 11:20:34 PST 2005

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Curbing terror or menacing freedom?
Mar 9th 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

Reuters
Reuters

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 ³dirty bomb². And on Monday March 7th,
the British Parliament¹s upper house, the Lords, rejected some key measures
in a new anti-terror bill that Mr Blair is trying to rush in before he is
forced by a court ruling to free the Belmarsh detainees next week.

Mr Blair¹s anti-terrorism policy has been in growing disarray for several
months. In December, Britain¹s highest court, the Law Lords, struck down one
of the main measures in the terrorism law passed after the September 11th
attacks, which allowed the government to detain foreign terror suspects
indefinitely without trial. To enact this 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 ³war or public emergency threatening the life
of the nation². However, the Law Lords rejected the government¹s claims that
the current terrorist threat justified such an opt-out.

Faced with having to release Britain¹s ten remaining foreign detainees, all
North African Muslims, Mr Blair decided to rush through a second anti-terror
law, allowing ministers to impose other restrictions on terror suspects,
short of imprisonment, ranging from house arrest to curfews. He argued that
such measures were indispensable, for instance in cases where suspects could
not be prosecuted without revealing intelligence sources.

Amid strong criticism of the proposed new law, including from many members
of Mr Blair¹s own Labour Party, the government made an important concession
last week, agreeing that only judges, and not ministers, would be able to
impose house arrest. Even this was not enough to avert a big rebellion by
Labour members in the House of Commons, where the prime minister¹s nominal
majority of 161 was slashed to just 14 in one key vote. This encouraged the
upper house to take an even tougher line. In a vote on Monday, it struck out
clauses that would have let ministers impose curfews and a range of other
restraints on suspects¹ freedom, insisting instead that only judges be
allowed to do so. And on Tuesday, it rejected more government proposals,
including those restricting suspects¹ right to state benefits.

Sunset clauses

Besides the rapidly approaching deadline for releasing the British
detainees, Mr Blair has to bear in mind the imminence of the general
election, expected in May. On Tuesday, the upper house overruled his
objections and voted for a ³sunset clause² in the proposed terror law, under
which its measures would expire in November unless Parliament renewed them.
As the bill returned to the Commons for a vote on Wednesday night, Mr Blair
indicated he would agree to some but not all of the concessions being urged
on him. It remained unclear whether he would now muster enough votes in both
houses or risked losing the proposed law altogether.

There is also 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 Bush¹s
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 ³enemy combatant² 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 Bush¹s response to the first ruling was to create ³combatant status
review tribunals² to determine whether each Guantánamo inmate had been
correctly classified as an ³enemy combatant². 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 Court¹s 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 Britain¹s 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 province¹s Catholic minority only
served to sustain support for the IRA, not deter it. Similarly, long
detentions without trial at Guantánamo and Belmarsh risk serving as
recruiting-sergeants for the terror groups that the measures are aimed at
curbing.