The British Parliament adopted a new antiterrorist law, the Prevention of Terrorism Act, on March 11, 2005. By doing so, Parliament made it possible for the government to carry out the long-standing project of expanding the emergency provisions to which foreigners are subjected within the context of the war on terrorism to cover the whole population, including citizens. This change is important because it calls into question the notion of habeas corpus. The law attacks the formal separation of powers by giving to the secretary of state for home affairs judicial prerogatives. Further, it reduces the rights of the defense practically to nothing. It also establishes the primacy of suspicion over fact, since measures restricting liberties, potentially leading to house arrest, could be imposed on individuals not for what they have done, but according to what the home secretary thinks they could have done or could do. Thus, this law deliberately turns its back on the rule of law and establishes a new form of political regime.
The Prevention of Terrorism Act is a modification of Part Four of the Antiterrorism, Crime and Security Act 2001, specific provisions of which concerning detention of foreigners accused of terrorism expired on March 14, 2005.
The 2001 Antiterrorism, Crime and Security Act
The attacks of September 11, 2001, allowed the British government to force the urgent adoption of a new antiterrorist law, the Antiterrorism, Crime and Security Act, which was enacted on December 14, 2001. In comparison with the 2000 Terrorism Act, which is still in force, the 2001 legislation authorizes the indefinite detention, without an indictment, of a foreigner suspected of terrorist activities, just as in the United States. Article 21 allows indefinite incarceration based on a certificate issued by the secretary of state for home affairs. “The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably believes that (a) the person present in the United Kingdom is a risk to national security, and (b) suspects that the person is a terrorist.”1 No objective fact is necessary to justify the decision. The time limit for “conviction” is entirely subjective. The power of detention is effective until November 10, 2006.
The certificate issued by the home secretary permits the detention of the accused person within the terms of the Immigration Act of 1971, i.e., for the purpose of either expulsion or return to the country of origin. The possibility of detention for an indefinite period is necessary when expulsion is prevented by an international agreement or another reason. In this case, the person has a choice between remaining in indefinite detention in the United Kingdom or returning to his or her country of origin and being subjected there to a whole set of proceedings that are exceptional under the terms of international law. Most often, the countries of origin of the incarcerated persons are well known for their systematic violations of human rights. It is in these terms, moreover, that the debate was presented to Parliament.2 The foreigner suspected of terrorism by the English government thus enters into a global system of non-law in which every option is closed to him or her.
A Suspension of the Law
By permitting potentially unlimited detention, this act effectively suspends the law for all persons not having British citizenship or legal residence or not benefiting from the right of protection as refugees. Thus, the suspension of habeas corpus is less extensive than in the United States, where all foreigners are affected.
In order to pass this law, the British government instituted an exception to the European Convention on Human Rights. This exception is based on the notion of a state of emergency and is thus an exception to Article 5, Paragraph 1 of this convention, which guarantees the liberty of persons. According to Article 15 of the convention, exceptional measures must be limited strictly to the minimum necessary as required by the situation. As judged by the Special Immigration Appeals Commission (SIAC), this is not true of unlimited detention. The SIAC was created in order to assure some control over detentions. The law does not allow appeals to be made before this commission. That has not prevented the latter from ordering the release of nine out of the eleven detained under this law, the other two having chosen expulsion. The government reacted to the judgment by announcing its intention to resort to other procedures that would allow it to pursue incarceration. It has thus clearly announced that it does not intend to respect the judgment of a special commission that it established. The government appealed and the higher court fundamentally found in its favor on the question of discrimination between foreign nationals and British citizens.3
Suspension of the Law Questioned by the Law Lords
On December 22, 2004, the secretary-general of the Council of Europe demanded the immediate abrogation of the 2001 Terrorism Act: “Antiterrorist legislation in the United Kingdom must be changed immediately. We will not win the war on terrorism if we undermine the foundation of our democratic societies.”4 This position follows a decision reached by the Appeals Court of the House of Lords, the highest judicial body in Great Britain, on December 16, 2004, that considers the unlimited detention, without indictment and trial, of foreigners suspected of terrorist activities as illegal and contrary to the European Convention on Human Rights.5
The judgment resulted from a challenge made by the same nine detainees who had earlier, in July 2002, obtained a victory before the Special Immigration Appeals Commission (SIAC). However, they had seen their demand for release rejected once again in August 2004 by the Appeals Court in London.
None of the applicants is the subject of legal proceedings nor have any charges been filed. The appellants contest the legality of their detention, asserting that it is contrary to the obligations assumed by the United Kingdom with regard to the European Convention on Human Rights and thus with the Human Rights Act 1998, which integrates this convention into British law.
In its opinion, the Appeals Court of the House of Lords found in favor of the applicants. The judgment indeed recognizes that the 1971 Immigration Act provides the possibility of detaining an individual who is not a British citizen with the intention of proceeding with that individual’s extradition, but specifies that this law does not grant any mandate permitting a long or indefinite detention.
State of Emergency
The grounds for the decision clarify the opposition between the classic definition of the state of emergency, limited in time and objectively defined, defended by the Law Lords and the position of the government, which wants to implement an indefinite and unverifiable suspension of constitutional liberties. The decision stipulates that the indefinite incarceration authorized by the 2001 Terrorism Act, which would not be, moreover, the result of any judicial verdict, is indeed contrary to Article 5 of the European Convention on Human Rights, which guarantees the liberty of persons. At the same time, the decision invalidates the exception to this article instituted by the government. This exception refers to Article 15 of the convention that stipulates: “In time of war or other public emergency threatening the life of the nation, any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation….”
The court agreed with the argument presented by the applicants that the exceptions to Article 5, which are strictly limited to situations of war or emergency in which the life of the nation is threatened, are not applicable in the present situation. For the court, the state of emergency is limited in time. There must be an imminent danger or exceptional circumstances that must be objectively determined. Article 15 does not refer to the specific nature of the danger, but this question was treated by the European Court as a necessary condition of the suspension of Article 5. The Court quoted from the Siracusa Principles in this context: “The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger.”6
By returning to these basic principles, the Law Lords opposed the argument presented by the attorney general, for whom a situation of emergency is not necessarily temporary and can cover a considerable number of years. For him, it falls within the competence of the executive power to protect the population. He did “resist the imposition of any artificial temporal limit to an emergency of the present kind….”7 For the executive power, the question of the suspension of liberties is a purely political matter, in the narrow sense of the term. It is a matter for its own initiative and under the control of Parliament. As “it is the function of political and not judicial bodies to resolve political questions,”8 the question of the exception to the law must be outside the jurisdiction of various judicial authorities. The Law Lords opposed to this position the idea that the role of the courts consists of verifying the legality of the acts of various authorities. By doing this, the highest British judicial authority evoked the principle of separation of powers and did “not accept the full breadth of the Attorney General’s argument on what is generally called the deference owed by the courts to the political authorities.”9
The Prevention of Terrorism Bill
The decision of the Lords of Appeal is a simple opinion without constraining force. The government can choose not to take it into account. But in the end, the government concluded that taking the decision into consideration was a good occasion to legitimize the generalization of the emergency provisions to the whole population. The highest British court found that the indefinite detention, without indictment or trial, of foreigners suspected of terrorist activities is illegal and contrary to the European Convention on Human Rights.10 It also considered the distinction between foreigners and citizens as discriminatory.
A Generalized State of Exception
The Prevention of Terrorism Act 2005 appears to be non-discriminatory since it concerns British citizens as much as foreigners. By pushing the enactment of a modification to Part 4 of the Terrorism Act 2001, which allows the indefinite detention of foreigners without evidence or trial, the English prime minister succeeded in extending to British citizens a whole series of exceptional procedures that call into question the individual liberties of all Britons. Tony Blair appealed to fear in order to justify his project. He claimed: “The present law is called for by the police and security services. Voting it down would mean jeopardising the country’s security.”11
Tony Blair has been able to impose on the United Kingdom what George W. Bush has not succeeded in imposing on the United States, i.e., the possibility for the government to take measures that call into question the right of citizens to self-determination within the context of the war on terrorism. In the United States, the procedures that would extend to citizens the provisions of the Patriot Act that authorize imprisonment of indefinite duration, without charges or indictment, of any foreigner suspected of terrorism have not been adopted. The Bush administration has been unable to put the bill, known as Patriot II,12 on the Congressional agenda.
The End of Habeas Corpus
The Prevention of Terrorism Act 2005,13 passed on March 11, 2005, authorizes the home secretary to initiate control orders over a person, potentially leading to house arrest, when he has reasons to suspect that an individual is or was implicated in an action linked to terrorism. He would also be able to prohibit the use of a mobile telephone, limit access to the internet, prevent that person from having contacts with certain persons, oblige him or her to be at home at certain times, and authorize the police and special services to have access to his or her home at all hours. He also has the possibility of limiting access to employment or to an occupation. The list of fifteen control orders provided for by the law is not exhaustive and is only provided as a list of examples. The government has the possibility of indefinitely introducing new provisions that limit the freedom of movement of the persons concerned. If the latter do not respect these orders, they are liable for imprisonment. These provisions could be taken when the home secretary considers that the individual in question presents a danger to national security, but that the facts in his possession do not allow him to take the case before a court. Home Secretary Charles Clarke declared before Parliament that control orders could be taken “on the basis of an intelligence assessement provided by the Security Service (where) there are reasonable grounds for suspecting that an individual is, or has been, concerned with terrorism.”14
A Subjective Law
The justification for the decision to place a person under supervision is not found in objective facts, but in the suspicion that falls on that person or in the intention that is attributed to that person. Terrorist activity is defined as: “(a) the commission, preparation or instigation of acts of terrorism; (b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so; (c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so; (d) conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity.”15 Thus the law does not concern definite acts, but punishes assistance to persons who are simply suspected of activities or intentions linked to terrorism. This notion is particularly indeterminate and subjective. Its area of application is very large, nearly unlimited, and totally unverifiable. What is an activity linked to terrorism? Is it, for example, to have accommodated persons who later were suspected of participating or of having had the intention of participating in actions designated as terrorist? Does it include belonging to a support group for political prisoners?
The reaction of the House of Lords was problematic for the government. Initially, the lords rejected the project, considering the text as an attack on liberties. It ended up accepting it after thirty hours of debate and after having gotten agreement that control orders would be taken with the consent of a court. In accordance with the new text, the home secretary must apply to a judge before carrying out a house arrest, but, in cases of emergency, he could immediately order minimal measures and ask for a court’s concurrence within seven days. Above all, the upper house laid down the condition that passage of the law must be accompanied by a sunset clause effective in one year. Thus the law would have to be submitted to debate again in July 2006. The work of an independent commission, charged with following the application of the law, must serve as the basis for future parliamentary work.
Even if the home secretary makes a decision with the consent of a court, this judicial guarantee obtained by the House of Lords has nothing in common with the classic judicial procedure that guarantees the rights of the defense. Under the provisions of this law, the defense has no access to the file containing the alleged facts and no possibility of contesting them. The only ones with access to these facts are the judge and “special attorneys” selected by the home secretary. The special attorneys are responsible for representing the point of view of the defense, but without providing the defense with the “proof” alleged against it and without giving it the possibility of refuting that proof. The decision is made in the absence of the incriminated person.
Contrary to what the home secretary claims, this exceptional procedure has nothing in common with long-term preventive detention as applied in matters of terrorism by countries such as Spain or Germany. In those countries, the detention is exclusively ordered by a judge, the incriminated person knows the charges that are held against him or her and the defense has the possibility of contesting the evidence or the reasons for the detention. This new procedure results in the abolition of the presumption of innocence that is normally granted to persons prosecuted within a judicial context.
An Evaluation by Secret Services
Control orders can be made based on information provided by a security service. This source can be from outside the United Kingdom, from the United States, for example. During the debates in the House of Lords, the government had conceded that the prosecution could not use evidence obtained through torture. However, the government does not appear to have renounced using such information. The Independent related the statements of the foreign secretary who claimed that “while torture is of course thoroughly unacceptable, our country cannot dismiss intelligence that has been gained in this way by the US, especially when the lives of 3,000 people are at stake.”16
The assessment made by the security services can rely on a great diversity of sources, many of which could not serve as proof in judicial proceedings. It is not only a question of intercepting telephone calls or e-mails, but all of the intrusive acts implemented by a secret service, such as video surveillance, infiltration, and information obtained by undercover agents. The information contained in the reports or statements made by such agents or informers are evaluated according to a scale of plausibility dependent on “various degrees of truthfulness and accuracy.” The evaluation made by the intelligence services on the danger to national security presented by an individual is separate from the observation of a specific act. An individual can be considered dangerous and subjected to control orders if he or she is suspected of being “a member of or associated with suspect organizations.” It is not necessary that the “proofs” established on the basis of information supplied by the secret services be objective. They can amount to the subjective evaluation of a potential danger to which a determinate level of dangerousness is attributed. The law’s explanatory notes insist on the preventive character of the surveillance provisions, since these measures are designed to prevent terrorist attacks on Great Britain.
The fate reserved by the government for English citizens imprisoned at Guantánamo is a good example of the anticipated implementation of this law. Four Britons, detained at Guantánamo for more than three years, were freed in January 2005. After having been interrogated by the English antiterrorist police, they were freed one day later. No charge was filed against them. This fact did not prevent the home secretary from considering them a terrorist danger for Great Britain. He initiated control orders on them, such as prohibiting travel to foreign countries and making it impossible to obtain a passport. He justified these measures on the basis of information obtained from interrogations at Guantánamo.17 Thus, on the basis of “intelligence” given by the United States, obtained in conditions of torture or mistreatment, and without possibility of verification or contestation, the prisoners freed from Guantánamo remain in an international system of non-law.
The End of a Double Judicial System
The most significant part of the Prevention of Terrorism Bill is the fact that it expands the suspension of law to include citizens. It puts an end to a double judicial system: rule of law for citizens and pure violence for foreigners. The suppression of habeas corpus is extended to the whole population. It is now a generalized state of exception. This law, like the American Patriot II project, must be envisaged as the first step in a process intended to extend measures that suspend the law to the entire population, including citizens, within the context of the war on terrorism. The home secretary already revealed this project. He also spoke of the possibility of trying simple suspects in special courts of law. The accused would not have the choice of his or her attorney. The latter would be selected by the executive power, on the basis of a list approved by the secret services.
The USA Patriot Act and the English 2001 Antiterrorism, Crime and Security Act are still based on the existence of a double judicial system: on the one hand, protection of the law for citizens, even if it is increasingly restricted, and, on the other hand, suspension of the law for foreigners. It is this double judicial order that begins to disappear, with the Patriot II project as well as the Prevention of Terrorism Bill. The war on terrorism thus marks a rupture in the western mode of political organization, founded traditionally on a double system that takes the form of the rule of law inside a society and the use of “pure violence” outside of it. The exception becomes the rule. The rule, which inscribes the exception in the law, is constructed as a function of it. This is exactly the process that is unfolding before our eyes
State of Emergency or Dictatorship?
By imposing a review clause (sunset provision) on the 2005 Prevention of Terrorism Act that authorizes evaluation of the law after one year, the House of Lords kept that law within the formal context of a state of emergency, since these measures could be abrogated after one year. The government did not want to set any temporal limit, the war on terrorism being viewed as a war of long duration against a multiform enemy. It has not, however, renounced its project and wishes to profit from the review procedure by pushing for the adoption of control orders freed from their temporal constraints.
However, this law is no more than formally part of a state of emergency. It gives judicial prerogatives to the home secretary. A person is designated as terrorist not by the decision of a court, but by a certificate issued by a representative of the executive power. At no point does the latter have to justify a decision that is applied to simple suspects. Objective facts, which should be used as the basis of these suspicions, are not even necessary since they remain secret. It suffices that the administrative authority assert that it is detaining the suspects and that this declaration be corroborated by a court. What is the guarantee of a judicial control that is exercised without the possibility for the defense to assert its rights, even to know what it is being charged with? What independence can the judicial power assert in a decision-making process in which it does not have the means to verify the information that is given to it as well as the means of proof?
This law represents one step forward in the dismantling of the rule of law. It is an example of a purely subjective law, allowing a maximum of interpretation. It is a law that assures the primacy of firm belief over facts. The executive power concentrates in its hands all the power, including judicial prerogatives. With this legislation, the United Kingdom moves into a new type of political regime called by the theory of law a dictatorship.
Notes
- Anti-Terrorism, Crime and Security Act 2001, http://www.opsi.gov.uk/acts/acts2001/2001004.htm
- Home Affairs Select Committee, “The Anti-Terrorism, Crime and Security Bill,” HC(2001-O2) 351,10/11/2001, First Report.
- Elspeth Guild, “Facettes de l’insécurité. Agamben face aux juges. Souveraineté, exception et antiterrorisme,” Cultures et Conflits, no. 51.
- Statewatch News Online, December 22, 2004, http://www.statewatch.org/news/archive2004.htm
- 5. Opinions of the Lords of Appeal for judgement in the cause: A(FC) and others(FC) (appellants) v. Secretary of State for the Home department (Respondent), House of Lords, session 2004-05, (2004) UKHL 56, December 16, 2004. http://www.statewatch.org/news/2004/dec/belmarsh-appeal.pdf
- Opinions of the Lords of Appeal, 13
- Opinions of the Lords of Appeal, 15
- Opinions of the Lords of Appeal, 17
- Opinions of the Lords of Appeal, 17.
- 10. Opinions of the Lords of Appeal.
- 11. Jerôme Rassetti, “Blair revoit sa copie antiterroriste,” Le Soir, March 9, 2005.
- 12. Domestic Security Enhancement Act of 2003, http://www.publicintegrity.org/docs/PatriotAct/Story_01_020703_doc_1.pdf
- Prevention of Terrorism Bill, http://www.homeoffice.gov.uk/docs4/terrorism_bill.pdf
- Statewatch report, “The exceptional and draconian become the norm,” 9, http://www.statewatch.org/news/2005/mar/exceptional-and-draconian.pdf
- Prevention of Terrorism Act 2005, Article 1(9), http://www.opsi.gov.uk/acts/acts2005/20050002.htm
- Colin Brown, “Straw: Britain cannot ignore evidence obtained by torture,” The Independent, March 11, 2005.
- Statewatch report, “The exceptional and draconian become the norm,” 8.
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