[Mb-civic] Curbing terror or menacing freedom?

Fri Mar 11 11:05:48 PST 2005

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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

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 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 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 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 ³sunset
clause² 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 ³sunset clause in all but name² 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 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 like those at Guantánamo and Belmarsh risk serving
as recruiting-sergeants for the terror groups that the measures are aimed at
curbing.