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to the Convention rights scheduled in the Human Rights Act 1998. SIAC’s
decisions were then appealed to the Court of Appeal.85 SIAC had to consider
first whether there had been compliance with the requirements for deroga-
tion, meaning that it had to examine the demands of Article 15. The
Government had not claimed that this is a time of war and therefore the
first question which the court had to consider was whether there was a public
emergency threatening the life of the nation, within the meaning of Article 15.
The European Court of Human Rights itself has never found that a claim
for a derogation is unjustified on the basis that such a state of emergency does
not exist. However, the Commission was prepared to make such a finding in
the Greek case86 since it considered that the threat was largely imminent
rather than actual. In Lawless v. Ireland87 the Court found that any terrorist
threat must affect the whole population, must be in being or be imminent,
and must have produced a situation in which the usual law enforcement
mechanisms are unable to function.88 The introduction of special powers in
Ireland, including internment, in 1971 was found to be justified by an
upsurge in terrorist activity, together with serious and prolonged rioting.89



81
S. 4 SIACA 1997.
82
Dyzenhaus is heavily critical of Rehman, arguing that it wholly undermined the special
position and powers of SIAC: see Chapter 4, at 82–3.
83
‘I have not been able to understand the submission that less deference should be paid to
the Secretary of State in [relation to there being a state of emergency ] than in the [national
security situation at issue in Rehman]’ – note 53 above, at 237, per Laws LJ.
84
A and others v. Secretary of State for the Home Dept, determination: 30 July 02, unrep.
85
A, X and Y and Others v. Secretary of State for the Home Dept – note 74 above.
86
12 YB 1 (1969). 87 A 3, (1961) at 28.
88
Ibid. It found that these conditions were satisfied in 1957 due to the existence of a ‘secret
army’ operating in Ireland and in the UK and because of the alarming rise in terrorist
activities in the previous year.
89
Ireland v. UK A 25 (1978) at 23.
HELEN FENWICK AND GAVIN PHILLIPSON
474

In introducing the ATCSA the Home Secretary said that the Government
held secret information suggesting that members of some international
terrorist groups are currently in Britain.90 The Government took the view,
taking into account the September 11 atrocities and Britain’s support for
America, that a state of public emergency affecting the life of the nation could
be said to exist. The Joint Committee on Human Rights, however, expressed
concern in its Second Report about the lack of specificity in the reasons given
for taking this view.91 It examined the Home Secretary in oral evidence on the
reasons for thinking that a state of emergency existed differing from that
facing the country when the TA 2000 was enacted; he replied that the current
threat is greater than that posed by the IRA since the 1970s because the
terrorists in question are thought to have access to weapons of mass destruc-
tion.92 The Committee found that there might be evidence of a state of public
emergency but that no evidence of it had been disclosed by the Home
Secretary. In its more recent report the Committee reiterated its concern
that it was unable to advise Parliament on the necessity and proportionality
of the UK’s derogation, on the evidence that had been made available to it. It
suggested that the consequent democratic deficit in terms of scrutiny of the
executive assertion of a public emergency could be cured by empowering the
parliamentary Intelligence Services Committee to investigate and report on
the matter itself.93 Given the wide margin of discretion granted by the courts
to the executive in assessing this matter, discussed below, it is submitted that
this suggestion of the development of an independent, democratic forum
within which this assessment could be made in a more rigorous manner, is
a compelling one.
SIAC took the view that it had to decide ‘whether the decision that there
was such an emergency as justified derogation was one which was reasonable
on all the material or . . . one that he was entitled to reach’.94 This standard of
scrutiny appears to resemble the Wednesbury approach and therefore, it is
argued, was too low.95 Having adopted this approach, SIAC accepted the
existence of an emergency within the terms of Article 15 due to the fact that
‘the UK is a prime target, second only to the US96 . . . an emergency can exist

90
See HC Debs 15 Oct. 2001, col. 924; evidence of the Home Secretary given to the Joint
Committee on Human Rights, Second Report (note 12 above), Questions 3–7 and 9.
91
Ibid., at 29.
92
Second Report (note 12 above) and Oral Evidence appended to the report, Questions 3–7
and 9, at 29.
93
Note 79 at 23. 94 Note 84 above at 21.
95
This point was raised on behalf of the applicants in the Court of Appeal; the Court
considered that these words merely meant that SIAC recognized that it must afford a
reasonably wide margin of discretion (A, X and Y and Others v. Secretary of State for the
Home Dept [2003] 1 All ER 816 at 59.
96
Note 84 above, at 35.
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and can . . . be imminent if there is an intention and a capacity to carry out
serious terrorist violence even if nothing has yet been done’.97
The Court of Appeal98 also accepted the existence of an emergency in
Article 15 terms. Taking into account the breadth of the definition of an
emergency under Article 15 and the fact that the domestic courts considered
that they had to assess, on the basis of very sensitive intelligence, not an overt
but a covert, implicit and speculatively imminent state of emergency, it was
unsurprising that they concluded that one is currently in existence in the UK,
although such an assessment would clearly be open to future revision if
al Qaeda’s operational effectiveness appears to diminish. In this respect it
should be noted that in its notification of derogation from Article 15, the UK
Government pledged that the derogation would be withdrawn as soon as it
was no longer necessary.99 The House of Lords is about to consider the
question whether a state of emergency can be said to exist, and is likely to
take account of the fact that other European countries, including Spain –
which has suffered a severe terrorist attack – have continued over the past
three years to find it unnecessary to derogate from Article 5.100
The second question to be asked under Article 15 is whether the derogation
applies ‘only to the extent strictly required by the exigencies of the situation’.
This is a much more problematic issue. The Joint Committee on Human
Rights concluded that even if the requisite state of emergency exists, it was
doubtful whether the measures in the Bill could be said to be strictly required,
bearing in mind the array of measures already available to be used against
terrorism.101 Other legal opinion on this issue was quite firmly to the effect
that the detention scheme is unjustified on the basis that it goes further than
is required by the exigencies of the situation.102
In determining the question of proportionality SIAC relied on the relevant
Strasbourg jurisprudence in considering the need to introduce the Part 4
detention scheme, bearing in mind the other available measures which have
not themselves necessitated derogation.103 SIAC found that so long as the


97 98
Ibid., at 24. [2003] 1 All ER 816.
99
As the Opinion prepared for JUSTICE’s evidence to the Joint Committee pointed out,
the fact that a state of emergency could be viewed as currently in being may not continue
to justify the existence of the derogation since the assessment is based on the continued
operational effectiveness of al Qaeda (Second Report, note 12 above at 10–11).
100
Spain suffered the bombing of Madrid, apparently perpetrated by al Qaeda, on 11 March
2004. See the Second Report of the Joint Committee on Human Rights (note 12 above) at
[30] on the position of other countries.
101
Second Report (note 12 above) at 30.
102
Both David Pannick QC in his Opinion for Liberty and the Opinion prepared for
JUSTICE (note 12 above) came to the conclusion, on different grounds, that the
derogation was unjustified.
103
See: Lawless v. Ireland A 3, (1961) at 36; Ireland v. UK A 35, (1978) at 212.
HELEN FENWICK AND GAVIN PHILLIPSON
476

detention scheme fell within the range of reasonable legislative responses it
should not be viewed as over-broad merely because other alternatives were
available. It went on to consider the key issue of over-inclusiveness and found
that account should be taken of the potential effect of s. 3(1) HRA (providing
that legislation should be rendered compatible with the Convention rights if
at all possible) and the power of SIAC to set aside the certificate under
s. 25(2)(b) ATCSA. Section 3(1) could be used, it was found, to narrow
down the provisions of ss. 21–23 so that they only applied to members of al
Qaeda and those linked to it. Moreover, if the powers were exercised against a
person unconnected with al Qaeda that would provide a basis for setting aside
the certificate under ss. 25(2)(b). Thus the detention scheme was found to
satisfy the test of proportionality. The Court of Appeal agreed with SIAC in
accepting that the measures taken were strictly required in the circumstances,
taking into account the limited class of foreign nationals at which they were
aimed. The judges found that it was well established that in some circum-
stances, particularly in times of emergency, states may distinguish between
nationals and non-nationals.
Lord Woolf considered that s. 3(1) HRA need not be used to narrow down
the detention provisions: he said that they would have to be read narrowly in
any event so as to ensure that they were covered by the derogation Order,
since otherwise they would conflict with Article 5. However, this point
appears to ignore the fact that primary legislation incompatible with a
Convention right remains valid: s. 3(2) HRA, and that s. 3(1) is the mechan-
ism to be used to seek to ensure that incompatibility does not arise. On the
basis that the provisions would in any event have to be read narrowly, Lord
Woolf accepted the Government’s undertaking that the detention power
would only be used in relation to the emergency which was the subject of
the derogation.104 This was a very significant reading down of the statute and
imposes a proportionality on the scheme which was not originally present
since only members of al Qaeda or those with links to al Qaeda can now
legitimately be detained.

D. Tension between Part 4 and the rights to liberty, to freedom from
discrimination, torture or inhuman or degrading treatment
The Court of Appeal agreed with SIAC that all other Convention Articles
protected under the HRA were applicable105 and could be claimed in relation

104
Note 74 above, at 42.
105
Ibid. This was on the basis that, regardless of the reference in Article 15 to ‘other
obligations in international law’ which might include other Convention rights, such
rights can in any event be invoked by the applicants, presumably under the HRA,
although Woolf CJ was not explicit on this point: ibid. at 36.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 477

to the detention scheme. The possibility that the application of the scheme
itself amounts to Article 3 treatment was raised before both SIAC and the
Court of Appeal. It was argued before SIAC that Article 3 treatment arises
where the only means of escape from indefinite detention without trial is to
accept the risk of such treatment abroad. If the deportation or extradition of a
person to a country where she will face Article 3 treatment is in breach of
Article 3, it is arguable that one could say the same, in principle, of forcing a
person to choose between indefinite detention without trial and accepting the
risk of Article 3 treatment abroad, since the ‘choice’ is so circumscribed. The
application of Part 4 can place – and is intended to place – some detainees in
the position of being forced to ‘choose’ between the exercise of two funda-
mental rights. It is therefore arguable that ss. 21 and 23 combined are
incompatible with Article 3 since they are so deeply opposed to the values it
enshrines.106 This argument was summarily rejected by both SIAC and the
Court of Appeal on the basis that the scheme was set up to protect the
appellants’ rights under Article 3, not to undermine them.107
The key argument put before SIAC was that the scheme is discriminatory
on the ground of nationality and therefore breaches Article 14 which pro-
vides: ‘The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex,
race . . . national or social origin, association with a national minority’. In
general, a breach of Article 14 can be established where other persons in an
analogous position enjoy differential treatment (in relation to another
Convention guarantee) and there is no objective and reasonable justification
for the distinction.108 In the domestic courts it has been found under Article 14
that there will be an objective justification for different treatment where it
pursues a legitimate aim and the treatment bears a reasonable relationship or
proportionality with the aim sought to be realized.109 SIAC found that since a
number of British nationals would fall within the definition of a ‘suspected
international terrorist’ under s. 21 ATCSA but could not be subject to deten-
tion under Part 4, the detention scheme creates discrimination on grounds of
nationality. A breach of Article 14 read with Article 5(1) was therefore estab-
lished. SIAC proceeded to quash the Derogation Order and made a declaration
of incompatibility (under s. 4 HRA) between s. 23 ATCSA and Article 14 read
with Article 5. This was clearly a highly significant finding. It meant that a key



106
In particular, where detention is very prolonged; the detainee is a torture victim who is
subject to severe psychological disturbance; he has already suffered prolonged detention
without trial abroad; death or torture abroad as the alternative is a near certainty.
107
SIAC judgment note 84 above, at 68, CA judgment note 74 above, at 58.
108
Stubbings v. UK (1996) 23 EHRR 213.
109
Michalak v. London Borough of Wandsworth [2002] EWCA Civ 271 at 20.
HELEN FENWICK AND GAVIN PHILLIPSON
478

aspect of the UK’s response to September 11 was deeply flawed since it had
failed to comply with the fundamental principle of non-discrimination.
However, the Court of Appeal disagreed. The Court, unanimously,
‘reached a different conclusion on the basis that British nationals are not in
an analogous situation to foreign nationals who currently cannot be deported
because of fears for their safety’.110 Lord Woolf CJ said that he reached this
conclusion partly on the basis of the tension between Articles 14 and 15.111
Article 15, as indicated above, debars the taking of action to meet the
emergency that is more than is strictly necessary. The Home Secretary had
come to the conclusion that it was only necessary to take action in respect of
non-national suspected terrorists and that was a conclusion that should be
treated deferentially by the courts. Action taken also against national sus-
pected terrorists might have been more effective but could not be viewed as
strictly necessary in Article 15 terms, bearing in mind the Home Secretary’s
decision. The basis for singling out non-national suspected terrorists – that
they, unlike nationals, are liable to be deported, even if, perforce, there is a
delay before deportation can occur – was, in Lord Woolf ’s view, rational.
Thus, the different treatment could be justified since it had a reasonable
relationship or proportionality with the aim – of meeting the emergency –
sought to be realized. In any event, Lord Woolf found, and the other members
of the Court of Appeal agreed, that the comparators – nationals who are
suspected terrorists – are not in an analogous position to non-national
suspected terrorists since they have a right of abode, whereas the non-nationals
merely have a contingent right not to be removed (due to the risk of Article 3
treatment abroad or where no country can be identified that is prepared to
accept them). The use of nationality as the determinant of the reach of the
scheme was found to be non-discriminatory and thus the appeal from SIAC’s
decision was allowed.
This decision was founded on the idea that targeting all ‘suspected inter-
national terrorists’ would have created a greater invasion of human rights
than the current scheme creates since the rights of nationals would also have
been invaded. This misses the point that a much more narrowly targeted
scheme – aimed on its face only at al Qaeda members or supporters – national
and non-national – would have created a much more confined invasion. The
choice to target instead the much wider group, based on the necessarily
unconnected factor of nationality – since al Qaeda is a group defined by
ideology, not nationality – is very difficult to defend in terms of rationality.
(It may also be noted that the choice of nationality as the key determinant of
the reach of the scheme means that it also creates indirect discrimination on
grounds of race.) The Court of Appeal succeeded in accepting the


110 111
Note 74 above, at 56. Ibid. at 45.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 479

Government defence only by adopting a strikingly deferential stance towards
the Home Secretary’s contention that an emergency created by al Qaeda
would be most effectively addressed by targeting persons on the ground of
nationality rather than on that of involvement in al Qaeda.112 Clearly, a
scheme that had included British citizens would have been viewed as more
draconian since they cannot be deported and so would not be able to leave
detention. However, almost all the suspects who were detained cannot in any
event leave detention, and therefore that distinction is not of great signifi-
cance in practice. Moreover, in accepting the argument that the detention of
non-nationals is non-discriminatory, it may be argued that the Court of
Appeal failed to uphold the role of courts in protecting minorities – minorities
who have no other means of seeking protection since, as they are debarred
from voting, they cannot employ the democratic process to do so. Deference
is context-dependent113 and the courts clearly have expertise in determining
questions of discrimination.


IV. Prospects for the future: reviews of the ATCSA
and the Government’s response
In this part, we consider the future – the probable course of the UK govern-
ment’s anti-terrorist security strategy. This is revealed primarily in its
responses to statutory reviews of the ATCSA carried out both by Lord
Carlile, an independent reviewer, and also by a group of Privy Counsellors
under Lord Newton114 (‘the Newton Report’); of particular significance is the
strongly argued view of the latter that the detention without trial provisions
in Part 4 ATCSA should be repealed and replaced as a matter of urgency. The
Joint Committee on Human Rights has also recently produced a report on
Part 4 and the Government’s discussion paper;115 it too urges the immediate
repeal of Part 4, whilst Lord Carlile has suggested prosecution under a new,
broader terrorist offence as an alternative to the detention scheme.116 It is
worthy of note therefore that the three independent reviews of Part 4 that
have been carried out all recommend its repeal.



112
Ibid. at 40 of the judgment. 113 But see text to notes 75 and 76.
114
That is, senior parliamentarians, and other holders of high office, whose technical role is
to advise the Queen. Their report, Anti-Terrorism, Crime and Security Act 2001
Review: Report HC 100 (2003–04), is available at www.homeoffice.gov.uk/docs3/
newton_committee_report_2003.pdf.
115
Eighteenth Report (2003–04).
116
‘If the criminal law was amended to include a broadly drawn offence of acts preparatory
to terrorism, all could be prosecuted for criminal offences and none would suffer
executive detention’: 2003 Review (note 117 below), at 101.
HELEN FENWICK AND GAVIN PHILLIPSON
480

A. The Government’s response to the Newton Report’s rejection
of the retention of the powers of detention without trial117
It is a matter of concern, in the light of the above remarks, to find that the
Government, having included in the ATCSA provision for a review of the Part 4
detention scheme by Privy Councillors,118 then unequivocally rejected its central
recommendation – that Part 4 should be repealed. The manner in which this was
done is also revealing.119 The Home Secretary dismissed this recommendation
on the same day that the report came out:120 a report of such length and over
which so much time had been spent surely deserved more deliberate consider-
ation than the few hours that the Home Secretary, David Blunkett, took to put
together a press release dismissing the proposals. Further, in his more detailed
response, considered below, the Home Secretary failed to engage seriously with
the arguments put to him. The poor quality of argument in this ‘discussion
paper’ discloses, we will argue, a dismissive attitude on the part of Government
to the human rights concerns of those independent bodies who would take
issue with its policy.
The Newton Report identified a number of particular points of concern
with Part 4, in particular the low standard of proof and the fact that the
suspects ‘are not presented with and given the opportunity to refute, all
the evidence against them’, leading to a risk of a miscarriage of justice.121
The Report concluded, in its most important finding of principle: ‘we
strongly recommend that the Part 4 powers which allow foreign nationals
to be detained potentially indefinitely should be replaced as a matter of
urgency’. In their place, the Report found that new legislation should be
introduced that would:
a. deal with all terrorism, whatever its origin or the nationality of its
suspected perpetrators; and
b. not require a derogation from the European Convention on Human
Rights.122
Point (a) refers to matters of both human rights principle and security: the
Report attacked the discrimination involved in applying such draconian

117
Note that further statutory reviews of the operation of Part 4 have been carried out by
Lord Carlile. These largely vindicated the operation of the scheme, the certifications made
under it, and the fairness of the hearings before SIAC; (his first report is, Anti-Terrorism,
Crime and Security Act 2001: Part IV Section 28 Review 2002 (2003), his second is the 2003
review, dated (2004). Both are available at www.homeoffice.gov.uk/docs.
118
Pursuant to s. 122(5) ATCSA 2001.
119
The Government’s response appeared as Counter-Terrorism Powers: Reconciling
Security and Liberty in an Open Society, A Discussion Paper Cm 6147 and is available at
www.homeoffice.gov.uk/docs3/CT_discussion-paper.pdf (hereafter, ‘Discussion Paper’).
120
See www.homeoffice.gov.uk/n_story.asp?item_id=743.
121
Note 114 above, at 188–9. 122 Ibid., at 135.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 481

sanctions on grounds of nationality, but also the irrationality of introducing a
scheme, intended to respond protectively to the threat posed by al Qaeda, that
affords no powers to use against dangerous members of that group who happen
to be British nationals.123 The Joint Committee has since said that it ‘strongly
agrees’ with this key finding.124 Newton therefore urges the Government to
consider an alternative that could be effective in combating terrorism but that
would be nationality-neutral. The Home Secretary’s response is, in effect, as
follows: the UK had to derogate in response to September 11, and that deroga-
tion had to be as narrow as possible.125 Therefore the Government decided to act
against foreign nationals only, as that amounts to the least draconian action, in
accordance with Article 15 ECHR. The problem, clearly, is that the whole
argument rests upon the assumed necessity for derogation, which itself assumes
the need for detention without trial. In other words, using strikingly circular
reasoning, the Home Secretary responds to an argument against using detention
without trial, by saying that since it had to introduce such a measure, it could
only be used against foreign nationals to keep its use as limited as possible. It thus
gives the appearance of engaging in reasoned argument whilst, in reality, wholly
avoiding the central issue.
The Home Secretary’s attempt to refute Newton’s argument that non-
discriminatory alternative counter-terrorist measures should be introduced,
is equally worthy of note:
Immigration powers and the possibility of deportation could not apply to
British citizens. While it would be possible to seek other powers to detain
British citizens who may be involved in international terrorism it would be
a very grave step. The Government believes that such draconian powers
would be difficult to justify.126
This response again avoids reasoned engagement with Newton. The Home
Secretary characterizes the argument that anti-terrorist legislation should
treat all nationalities equally as a suggestion that the powers to detain or
deport foreign nationals should be extended to include British citizens. He

123
The Government itself admits that the threat faced by the UK comes at least partly from
UK nationals: see note 119 above, Pt I, [24]; the Newton Report (note 114 at [193]) found
that ‘almost 30%’ of Terrorism Act 2000 arrestees in the past year have been British and
‘nearly half ’ of those suspected by the authorities of involvement in international
terrorism are British nationals.
124
Note 115 above, at 4.
125
‘It was the unprecedented threat posed by al Qaeda and its associated networks which led
to the derogation. The Government, in seeking a proportionate response, therefore
undertook to limit its use, and the application of Part 4, to the international terrorist
threat posed by al Qaeda and its associated networks. The Government’s action was
designed to meet the requirement in Article 15 that the measures leading to the derogation
‘‘were strictly required by the exigencies of the situation’’.’ (Discussion Paper, Pt I, at 35).
126
Discussion Paper, Pt I, at 35–6.
HELEN FENWICK AND GAVIN PHILLIPSON
482

then replies (a) that deportation of British nationals is impossible; and
(b) that detention without trial of British nationals would be too draconian
a step. The argument deliberately misstates Newton’s position and thus
provides no argument at all against proposals to introduce a non-discrimi-
natory scheme. It argues only against extending the current scheme to British
nationals – an irrelevance, since Newton does not propose this.
Newton further makes a powerful objection to the use of deportation as an
alternative to indefinite detention:
Seeking to deport terrorist suspects does not seem to us to be a satisfactory
response, given the risk of exporting terrorism . . . While deporting such
people might free up British police, intelligence, security and prison service
resources, it would not necessarily reduce the threat to British interests
abroad, or make the world a safer place more generally.127
The Home Secretary’s response to this objection is as follows:
It can be argued that as suspected international terrorists their departure
for another country could amount to exporting terrorism . . . But that is a
natural consequence of the fact that Part IV powers are immigration
powers: detention is permissible only pending deportation and there is
no other power available to detain (other than for the purpose of police
enquiries) if a foreign national chooses voluntarily to leave the UK.128
Here, the Home Secretary again reverts to circularity: he simply accepts the
problem of potentially exporting terrorism as a corollary of the course it has
chosen; he does not seem to be prepared to engage with it as a reason for
changing the Government’s course of action – an extraordinarily closed form of
reasoning, especially for what is supposed to be a discussion paper. His only
substantive response to this argument is to point out that, ‘deportation has
the advantage moreover of disrupting the activities of the suspected terror-
ist’.129 This may be a valid point, but with use of the internet and mobile
phones, it is possible that such a person could regain contact with his cell
quite easily.
In short, the Government’s response to the fundamental arguments of
principle and efficacy against the detention scheme reveal an obduracy and
unwillingness to engage in serious discussion that bode ill for the possibility
that reasoned pressure, such as that represented by the Newton Report, might
bear any fruit in the future. The Government seems wholly unmoved by the
fact that no other European country has derogated from the Convention:
Spain suffered a serious terrorist attack upon its soil very shortly after the
Government’s Discussion Paper was published, but has made no move to
derogate from the Convention in response.

127 128 129
Newton Report, at 195. Discussion Paper, Pt I, at 32. Ibid.
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B. Alternatives to detention without trial: the Newton and
Carlile proposals and the Government’s response
The Newton Report made a series of wide-ranging and imaginative proposals
that could act as alternatives to the detention scheme in Part 4 ATCSA,
whilst Lord Carlile130 suggested that those detained could instead be charged
under a new substantive offence of ‘being or having been concerned in the
commission, preparation or instigation of acts of terrorism’. This was not,
however, a proposal that found favour with the Joint Committee in its 2004
review of Part 4.131 It appears that the Government is minded to take up this
suggestion,132 but only as an addition to the Part 4 powers, not, as Carlile
intended, as a substitute for them. So the result may merely be that a further,
very broadly drafted, special offence may be added to the existing ones
considered above.
Despite the fact that the Government’s response was characterized as opening
a period of consultation on the operation and necessity for Part 4, it dismisses
Newton’s proposals on alternatives to Part 4 at the very outset: ‘the Government
does not believe any of [the proposals] provide a workable solution to the
challenges [Newton] poses’.133 The proposals would have allowed the
Government to avoid a derogation that at the present time looks increasingly
like being a long-term departure from its human rights obligations. They are
also precisely representative of the methods that other democracies are using in
fighting global terrorism. But these factors failed to carry any weight. As the Joint
Committee pointed out, in reviewing comparative research on anti-terrorism
law and policy prepared by the House of Commons,134 only the USA has also
resorted to administrative detention. Other democracies have adopted instead a
common cluster of methods that do not require derogation from basic human
rights norms and, importantly, are nationality-neutral: that is, they do not suffer
from the discrimination inherent in the UK scheme and can therefore be used
against all those threatening the state, not just foreign nationals. These methods
include:
the creation of new terrorism or terrorism-related offences, the adoption of
new investigative techniques, new protections for sensitive information,
changes to criminal procedure including longer pre-charge detention, and
the imposition of higher sentences for terrorism-related offences.135
Newton’s most important proposals are on similar lines since they relate to
methods of seeking to prosecute terrorist suspects, rather than detaining them

130
First report, note 117 above, at 6.5. 131 Eighteenth Report (2003–04) at 67.
132
Discussion Paper, at 48. 133 Ibid., at 34.
134
Note 131 at 83. The countries surveyed include: Australia, Belgium, Canada, Denmark,
Finland, Sweden, USA, France, Germany, Italy and Spain.
135
Ibid., at 83.
HELEN FENWICK AND GAVIN PHILLIPSON
484

without trial, thereby allowing for withdrawal of the UK’s derogation from Article
5 ECHR. Much evidence against such persons consists of telephone intercept
material obtained by the security services, but there is a statutory prohibition,
contained in the Regulation of Investigatory Powers Act 2000 (s. 17) against the
admissibility of such material as evidence in court. Newton therefore suggests
removing this ‘self-imposed blanket ban’.136 As LIBERTY comments, ‘Lifting the
bar [on the admissibility of such material] would . . . remove the primary obstacle
to bringing trials in criminal cases’,137 while the Joint Committee finds that there is
‘overwhelming support for this proposal’.138 Lord Carlile, in oral evidence to the
Committee, described the absolute ban as ‘a nonsense’, indicating that both the
police and MI5 are in favour of lifting it.139 Carlile’s stance is unsurprising, in view
of the fact that only Ireland also maintains a blanket ban on the use of such
material.140 As the Joint Committee puts it: ‘More tailored and precise ways of
protecting sources and methods should be developed which do not depend on
blanket prohibitions.’141 Newton suggests on this point:
We can also see the case for modifying the normal rules governing the
disclosure of evidence so that, for example, the prosecution would not be
obliged to disclose intercept evidence, or even its existence, unless they
chose to rely on it. This would need to be done with care to minimise the
risk of miscarriages of justice, but those risks should not be greater than
under the present system where the prosecution is forbidden from disclos-
ing intercepted communications, even if they are exculpatory.142

Newton also puts forward the more radical alternative of making ‘a security-
cleared judge responsible for assembling a fair, answerable case, based on a full
range of both sensitive and non-sensitive material [including intercept mate-
rial]. This would then be tried in a conventional way by a different judge.’143
Newton points out that a similar system is used in France. The key difference
between this and a conventional trial would be that only the investigating
judge, not the accused or his legal advisers, would see sensitive evidence that
was not then used. As Newton points out, in a normal trial, ‘the defence
normally has the right to see all potentially relevant material, even if the
prosecution is not relying on it (because it may undermine the prosecution’s
case)’.144
It is not, however, immediately clear that such an approach would answer
fully to the problem identified.145 Assuming that some sensitive evidence was


136
Newton Report, at 208. 137 Note 8 above, at 44. 138 Note 131 above, at 55.
139
Ibid., Q 22. 140 Newton Report, at 211. 141 Note 131 above, at 56.
142
Newton Report, at 213. 143 Ibid., at 224. 144 Ibid., at 228.
145
LIBERTY make a similar point in their response to the Discussion Paper, see note 8 above
at 31); see also the negative conclusion of the Joint Committee on this point: note 131
above, at 58.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 485

used at trial,146 it would still become known to the accused, so that the
original governmental objection (compromising sources or revealing
the capabilities of the security services) would still apply. Alternatively, if
the prosecution applied for a PII (Public Interest Immunity) certificate to
exclude the evidence on the ground of its sensitivity, and the judge accepted
it, the trial could not proceed if that evidence was central to the case. In any
event, the Government deals with this, one of the more complex and inter-
esting proposals of Newton, albeit one that requires further working out, with
a flat rejection: ‘It does not offer a solution to the need to protect sensitive
information whilst enabling the defendant to know the full case that has been
put against him.’147
Newton’s other recommendations rely upon the possibility of prosecution,
and seek only to maximize the potential impact of such prosecution. They do
not therefore in themselves address the fundamental problem of the use of
intercept material in court, and therefore would not, without further reform,
operate as substitutes for the Part 4 scheme. They advocate the use of a
greater and more structured use of plea-bargaining so that an individual
would know with greater certainty that he could obtain a reduction in
sentence in return for providing information about others or his own activ-
ities.148 The Government merely stated briefly and dismissively in response
that it is already considering making the current informal system of plea-
bargaining more transparent in criminal cases generally.149 It was equally
unreceptive to the suggestion of using terrorist involvement as an aggravating
factor in sentencing150 – a practice used both in the USA and France.151
The other main strand of proposals made by Newton were those intended
to remove the need for detention without trial by suggesting less draconian
alternatives that would apply even in cases in which it was not thought
possible to obtain a criminal conviction. The first of these focused upon the
immigration route and picked up on the concern expressed by Lord Carlile
that the Government does not always appear to be actively seeking to deport
those it is detaining where that is a possibility:


146
If the investigating judge decided not to use certain sensitive evidence this would
presumably be because it was non-probative. But in such an instance, whilst some
evidence that would otherwise have been seen by the defence would be excluded before
trial, it would by its nature be non-crucial evidence (otherwise it would have been
deemed probative).
147
Discussion Paper, Pt II, at 37.
148
Newton Report, at 240 ff. Newton cites the Council Framework Decision of 13 June 2002
on combating terrorism: it provides for the reduction of offences if the offender
provides assistance to the authorities in the anti-terrorism struggle or renounces terrorist
activity.
149
Discussion Paper, Pt II, at 39. 150 Discussion Paper, Pt II, at 33–4.
151
Newton Report, at 216 ff.
HELEN FENWICK AND GAVIN PHILLIPSON
486

. . . we have seen no evidence that it would be illegal for the Government to
detain the deportee while taking active steps in good faith to reach an
understanding with the destination government to ensure that the depor-
tee’s human rights were not violated on his return. This is what some other
countries seem to have been able to do, at least in some cases . . . [this
conclusion] is reinforced by the observation that two of those certified
under Part 4 as un-deportable suspected international terrorists have been
able to leave the country without apparently putting themselves at risk.152

The Government’s response to this points out:
Case law is quite clear. For immigration detention to be lawful, there has to
be a reasonable prospect of removal within a reasonable period. Without
derogation, and section 23 of the ATCS Act, we would have no option but
to release if an acceptable undertaking could not be obtained within a
reasonable period.153
While this is correct as a matter of law, there is a further possibility put
forward by Newton: of ‘seek[ing] to establish framework agreements in
advance with some of the main countries involved, in order to minimise
the delay in dealing with individual cases’.154 The Government asserts in
response that ‘work is underway’ to establish such agreements, but doubt is
cast on this by the 2003 report of Lord Carlile on the operation of Part 4. As
this generally uncritical reviewer comments:
. . . Whereas France appears to enter into bilateral discussions with third
countries as to what would happen to at least some detained persons
following transfer, as I understand it the practice of the Foreign and
Commonwealth Office has been to take only a generic approach as to the
receiving country. Some of the detainees left their countries of origin as
youths, and a more particular and individualised approach to the potential
receiving country might in some cases reveal a very low risk to them on
return provided that they are law-abiding thereafter.155
It may therefore be that the Government, whilst protesting that it uses
detention genuinely as a last resort, is simply failing to put in the diplomatic
leg-work in order to allow it to avoid detention. It will be interesting to note
whether the Government does in fact announce the establishment of such
agreements with possible receiving countries in the near future.
The other main alternative to detention offered by Newton is the use of
surveillance and restrictions upon the movement of suspects. Such lesser restric-
tions on liberty would have ‘the aim of monitoring potentially dangerous

152
Newton Report, at 154–5. 153 Discussion Paper, Pt II, at 46–7.
154
Newton Report, at 28c.
155
Anti-Terrorism, Crime and Security Act 2001: Part IV Section 28 Review 2003 (2004),
at 96.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 487

individuals to prevent them from engaging in terrorist or terrorist-facilitating
activity’. The Report suggested imposing restrictions on
a. the suspect’s freedom of movement (e.g., curfews, tagging, daily reporting
to a police station);
b. the suspect’s ability to use financial services, communicate or associate
freely (e.g., requiring them to use only certain specified phones or bank or
internet accounts, which might be monitored);
subject to the proviso that if the terms of the order were broken, custodial
detention would follow . . . 156
As LIBERTY points out, intensive surveillance, coupled with the threat of
custodial sentences, is the method used by the French and Swedish govern-
ments against those targeted by Part 4 in the UK.157 The Joint Committee
considers that the use of civil restriction orders, as outlined above, ‘is worthy
of further exploration’, although clearly such orders are also problematic in
human rights terms.158 In contrast, the Government peremptorily rejects this
suggestion, except in relation to those persons that present a low level of threat:159
Modern technology, such as pay as you go mobiles, easy access to compu-
ters and other communications technology mean that tagging by itself
would not prevent these individuals from involvement in terrorism and
the Government cannot guarantee the success of such an approach.160

It is suggested that where a distinguished group of Privy Councillors recommends
alternatives to a scheme that has necessitated derogation from a fundamental
provision of the European Convention on Human Rights, it requires more
serious consideration than a one-line dismissal that makes no attempt to
explain its lack of efficacy in considered terms.
It has been argued that the Government would be likely to use the provi-
sions for review in ss. 28 and 122 ATCSA161 in any legal challenge to Part 4
as evidence that the Government accepts their extraordinary nature and is
for that reason keeping them under careful, independent review.162 The
generic Court of Appeal judgment indicates that judges are indeed minded
to accept this Government argument; in particular, Laws LJ attached ‘no little
importance’163 to the requirement for review of the operation of Part 4 in
section 28.164 But the summary dismissal by the Government of the Privy

156
Newton Report, at 28a. 157 Note 8 above, at 36–7. 158 Note 131 above, at 80.
159
Discussion Paper, Pt II, at 44. 160 Ibid., at 45.
161
By a Government appointee (Lord Carlile), and by the Privy Councillors.
162
C. Warbrick, ‘Emergency Powers and Human Rights: the UK Experience’ in C. Fijnaut,
J. Wouters, and F. Naert (eds.), Legal Instruments in the Fight against Terrorism (Leiden,
Nijoff, 2004), at 399.
163
Note 53 above at 235.
164
See also Pill LJ, ibid., at 129 re parliamentary monitoring of the situation.
HELEN FENWICK AND GAVIN PHILLIPSON
488

Councillors’ key findings and recommendations discussed above gives the
strong impression that the statutory provision for review amounts only to a
fig-leaf – intended to lend respectability to the scheme, but not to be taken
seriously as a means of generating alternatives to the need for detention
without trial. In the result, the review provisions arguably have a doubly
negative effect: they appear to have helped protect the scheme from successful
legal challenge whilst doing nothing in practice to help bring it to an end or
ameliorate its worst aspects through politico-legislative means.


V. Conclusion
Democratic governments are clearly entitled to take extraordinary measures if
faced with a threat of atrocities on anything like the scale of those that occurred
on September 11. But as a matter of international law democracies are expected
to place especial value on the fundamental right of non-discrimination, and
in general would be expected to seek to impair human rights as little as possible
in the course of adopting such measures. The under- and over-inclusivity of
the current scheme means that it fails to satisfy both the minimum impairment
and the efficacy test. The over-breadth of the definition of terrorism in
the TA set the scene for the introduction of further over-inclusive provisions
in Part 4 ATCSA. Part 4 is not a ‘response’ to September 11; on its face it
is a response to certain previous decisions that stood in the way of the deport-
ation of suspected international terrorists generally. The response of the Court
of Appeal to Part 4 indicates that the Human Rights Act has enhanced
the protection of fundamental rights in the UK in the context of national
security, but the acceptance of the derogation demonstrates that the protection
remains limited. Thus, it may still be necessary to seek that protection at
Strasbourg.
At present, as this chapter has shown, two parallel schemes are operating in
Britain in respect of the counter-terrorist response: indefinite detention
without trial based on certification for a tiny group of suspected terrorists,
defined by nationality, and a nationality-neutral scheme165 based on a range
of broad special terrorism offences, but dependent on trial and conviction,
for all suspected terrorists. The creation of the two schemes reveals a clear
disjunction of aim between the creation of ever-broader substantive offences
and the due process demands of criminal trials. Ironically, the special terrorist
offences are viewed by the Government as ineffective in relation to those that
pose the greatest security threat. The creation of Part 4 of ATCSA amounts to
an admission of the failure of the criminal law to deal with this threat. So far the
Government has not sought to introduce modifications to the criminal trial

165
At least on its face, unlike Part 4.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 489

itself166 – such as allowing the use of intercept material in evidence – with a
view to bringing members of the relevant groups to trial. The key proposals
from the Newton Committee had that objective in mind: they were intended to
allow for the use of the special terrorism and proscription offences in prosecu-
tions against members or supporters of al Qaeda, in order to remove the need
for indefinite detention without trial. Their apparent rejection by the
Government, coupled with its view that the UK ‘now faces a near-permanent
emergency’167 – there being no prospect of a political solution – leaves the UK
with the prospect of a long-term derogation from the European
Convention.168 As the Joint Committee has recently commented, such
derogations:
have a corrosive effect on the culture of respect for human rights on which
the effective protection of all rights depends. They undermine the State’s
commitment to human rights and the rule of law, and diminish the State’s
standing in the international community.169
Unfortunately, the failure of democratic controls, the Government’s resis-
tance to reasoned pressure from the Newton Committee and others, and the
wide margin of discretion granted by the courts to the executive in this area,
give little grounds for optimism that this bleak scenario can or will be
avoided.

166
Save for the introduction, in places, of reverse burdens of proof, as in s. 57 TA – above text
to note 29.
167
Note 131 above.
168
Unless the House of Lords declares it unlawful in its judgment expected in late 2004.
169
Note 131 above at 4–5.
22

United States responses to September 11
WILLIAM C. BANKS




The violent destruction of life and property incident to war, the continual
effort and alarm attendant on a state of continual danger, will compel nations
the most attached to liberty to resort for repose and security to institutions
which have a tendency to destroy their civil and political rights. To be more
safe, they at length become willing to run the risk of being less free.1
The September 11 attacks profoundly affected the United States. Apart from
the destruction of so many lives and the damage done to two of our most
symbolically important buildings, the visual images of the attacks inflicted a
level of trauma unknown to many Americans. The collective sense of fear and
dread created by September 11, along with an understandable and palpable
collective determination to rise up and ‘do something’ about terrorism,
precipitated changes in laws and policies designed to counter the terrorist
threat.
Acknowledging the risks of making judgments about the longer term from
a perspective of three years from the event, the law and policy changes that are
still being made by the United States may be part of what many inside and
outside government now refer to as the ‘new normal’. In short, a longer term
permanent realignment of the relative importance of security among our
government’s objectives may be taking place, perhaps at the expense of a
thoughtful examination of terrorism and its antidotes. The new measures
have emerged from virtually all quarters of government in the United States,
and many of the reforms have significant if not profound implications for our
nation’s law and governance. A range of civil liberties protections have been
called into question, compromised or, some would say, undermined by new
investigative and criminal authorities, along with programmes to detain and
interrogate those captured in the ‘war on terrorism’. The largest overhaul of
government structure since World War II resulted in the creation of a new
executive branch department to oversee the nation’s homeland security.


I thank Helen Fenwick, Kent Roach, and George Williams for helpful comments on an earlier
draft.
1
Clinton Rossiter (ed.), The Federalist No. 8 (Alexander Hamilton, New York, 1961), at 50.

490
UNITED STATES RESPONSES TO SEPTEMBER 11 491

The traditional distaste for a military role in domestic affairs is being replaced
with a domestic command structure and an invigorated role for the military
in homeland defence. In the international sphere the war against terrorism
spilled over when President Bush launched a war against Iraq, justified at the
time on the grounds that Saddam Hussein had weapons of mass destruction
poised to strike the United States, and that Saddam had ties to the al Qaeda
terrorist network and thus actively supported the terrorists’ war against
America. The Congress was an active partner with the executive in these
initiatives early on, and has been largely quiet since authorizing the use of
force against Iraq in October 2002. The courts are being tested, and the
record so far is mixed. In critically important matters recently decided by
the US Supreme Court, decisions were made that may limit principles of the
new normal in the name of due process. It is equally possible, however, that
the rebuke to our government delivered by the Supreme Court in June 2004
will only provide legal cover for the unlimited detention and coercive
interrogation techniques already practised by the Administration. Only
time will tell.
It may well be that the war on terrorism is not our gravest crisis. Our
nation was born through the cauldron of violent revolution, and the Civil
War was the contemporary equivalent of an all-out nuclear attack on the
nation. In their time, the war with France soon after the founding and the two
World Wars were potentially more calamitous for us. In each of these wars,
the judicial branch was an active participant, sometimes generously deferent
to the government’s expansive interpretation of its wartime constitutional
prerogatives, other times especially attentive to what have been viewed as
unchanging constitutional values. Despite these historical parallels, there is
evidence that our government has begun to realign our institutions, laws, and
policies toward security in a way that is unprecedented.
Part I of this chapter will assess selected important law changes, beginning
with statutory and executive rule-based reforms, some designed to enhance
authorities to prevent terrorist attacks and others crafted to facilitate deten-
tion and trial of accused terrorists. The critical role of the courts in monitor-
ing the legal developments will also be considered. Part II will examine policy
shifts by our government, in national and homeland security strategy and in
civilian/military relations, which upset long-standing models for governance
by the United States. A brief conclusion will critique both sets of reforms.

I. The post-September 11 legal landscape
Within a few days of the World Trade Center and Pentagon attacks, Congress
passed a joint resolution authorizing the President to ‘use all necessary and
appropriate force’ against those responsible for September 11 ‘in order to
prevent any future acts of international terrorism against the United States by
WILLIAM C. BANKS
492

such . . . persons’.2 No geographic or time limit was placed on the authority
granted by the Authorization for the Use of Force, and the authorization to
‘prevent any future acts’ raises the possibility that military activities and other
actions short of the use of force could take place against an unidentified
enemy inside and outside the United States for the foreseeable future. In
short, the scope of the discretion given to the Commander-in-Chief is
unprecedented in United States history. In addition, for the first time since
the Civil War, our Government recognized that the battlefield in the war on
terrorism could include our cities. The breadth of the Resolution was under-
scored when the Supreme Court found in June 2004 that it empowered the
President to detain as an enemy combatant an American citizen allegedly
captured on the battlefield in Afghanistan.3

The USA PATRIOT Act
A few weeks after September 11, after minimal hearings and scant debate,
Congress enacted the USA PATRIOT Act.4 Perhaps more than any other legal
development, the Patriot Act has become a magnet for galvanizing supporters
and defenders of the Bush Administration response to September 11. Anyone
who has taken the time to read the 352-page Act must wonder just where to
find the magnetism. The Patriot Act is hardly a code for fighting the war on
terrorism, nor one for saving the United States homeland from another
attack. Instead, it is an amalgam of often unrelated pieces of authority,
most of which simply amend existing laws, and the larger share of which
are unremarkable complements to existing authority.
That is not to say that the Patriot Act lacks importance. The few really
significant changes in investigative authorities and criminal law were made
subject to a three-year sunset provision, and controversy really surrounds
only several pages of the 352. An entire subtitle of the Act that would have
authorized lengthy detention of any alien immigrant on the say-so of the
Attorney General5 has not been utilized, because existing immigration sta-
tutes and regulations conferred equally expansive authority.
One change wrought by the Patriot Act permits the FBI secretly to gain
access to the personal information of Americans – including library, medical,
education, internet, telephone and financial records – without having to
show that the target of the investigation has any involvement in espionage
or terrorism. Prior to the Patriot Act, the FBI could seek an order for

2
Authorization for the Use of Force, Pub. L. No. 107–40, 115 Stat. 224 (2001).
3
See discussion of Hamdi v. Rumsfeld, below.
4
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No. 107–56, 115 Stat. 272 (2001).
5
Ibid. xx 411–18, 8 U.S.C. x 1226a ff.
UNITED STATES RESPONSES TO SEPTEMBER 11 493

production of certain transactional records from third-party custodians,
such as banks and telephone companies, if the government certified that it
had ‘reason to believe that the person to whom the records pertain is a foreign
power or agent of a foreign power’.6 As the authority was broadened by the
Patriot Act, commercial vendors may be compelled to produce the requested
records following a statement from the FBI that the information is for an
investigation ‘to protect against international terrorism or clandestine intel-
ligence activities’. No showing is required that the target has anything to do
with terrorism. The same provision then makes it a crime for the vendor to
reveal that the FBI has obtained the requested information.7 Provisions
requiring a limited judicial approval before exercising this expanded author-
ity to examine business records were later eliminated, when Congress in 2003
amended the law again to permit the Attorney General to issue administrative
subpoenas (with no judicial role) in these investigations, and expanded the
categories of those subject to the subpoenas to include securities dealers,
currency exchanges, car dealers, travel agencies, post offices, casinos and
pawnbrokers, among others.8
Since the Patriot Act, the volume of administrative subpoenas, known as
national security letters, has increased dramatically, although the government
has resisted Freedom of Information Act requests for the relevant data.9 The
American Civil Liberties Union (ACLU) sued the Justice Department in April
2004, challenging the constitutionality of the expansion of this authority to
obtain personal records as it applies to electronic service providers. The
ACLU claims that the FBI can obtain information from traditional Internet
service providers, as well as universities, businesses, public interest organiza-
tions and libraries. The principal arguments by the ACLU are that the
expanded authority chills protected expression, that it invades personal
privacy, and that it constitutes a search that should be attended by a probable
cause determination and warrant procedure to meet constitutional Fourth
Amendment requirements.10
A second controversial Patriot Act provision amended the Foreign
Intelligence Surveillance Act,11 the authority that has, since 1978, allowed
intelligence investigators to bypass the regular law enforcement warrant
process by obtaining authorization for electronic surveillance or (since
1994) a physical search from a special secret court. Instead of having to


6 7
50 U.S.C. x 1862. Ibid. x 215, 115 Stat. 287.
8
Intelligence Authorization Act for FY 2004, Pub. L. No. 108–77, x 374, 117 Stat. 2599,
2628 (2003).
9
Dan Eggen and Robert O’Harrow, Jr., ‘US Steps Up Secret Surveillance’, Washington Post,
24 March 2003, A1.
10
American Civil Liberties Union v. Ashcroft, No. 04 Civ. 2614 (S. D. N. Y. filed April 2004).
11
50 U.S.C. xx 1801 ff.
WILLIAM C. BANKS
494

demonstrate to a magistrate probable cause to believe that a crime is being or
has been committed before being given permission to conduct electronic
surveillance or a physical search, the judge of the secret court has merely to
find probable cause that the requested surveillance is to obtain ‘foreign
intelligence’ from an ‘agent of a foreign power’. In other words, there should
be a reasonable belief that the target is connected to an international terrorist
organization.
Of course, intelligence and law enforcement investigations often overlap,
utilize the same methods, and may concern the same targets. Because of the
importance attached to personal privacy as enshrined in our Fourth
Amendment requirements for probable cause of a criminal act and a warrant
issued by a neutral magistrate, law enforcement and intelligence officials have
historically walked a fine line. To gather foreign intelligence, agents could
forego the traditional Fourth Amendment processes, but if they were intend-
ing to build a criminal case against the target, the probable cause and warrant
requirements had to be followed. Until amended by the Patriot Act, to avoid
tainting a criminal prosecution, investigators who found criminal activity in
the course of a FISA investigation effectively had to show that the primary
purpose of the surveillance approved by the secret FISA court was to obtain
foreign intelligence. Once that showing was made, the fact that evidence
turned up that could be used in building a criminal case would not under-
mine the rights of the accused.
This ‘wall’ between law enforcement and intelligence investigations per-
mitted parallel law enforcement and intelligence investigations to coexist and
protected the constitutional rights of the potential accused, but the govern-
ment argued that the various procedures designed to insure the integrity of
the wall stood in the way of effective cooperation and information sharing
between the law enforcement and intelligence investigators. The Patriot Act
thus changed FISA to permit an investigation to proceed by means of the
secretive and less burdensome FISA procedure so long as a ‘significant
purpose’ of the investigation is to gather foreign intelligence.12 Thus, a
terrorism investigation that is seeking to build a criminal case from the
beginning may bypass the traditional law enforcement warrant process and
attendant Fourth Amendment protections for individuals13 through use of
the FISA procedures, so long as some foreign intelligence is also sought.14

12
Patriot Act, x 218, 115 Stat. 291.
13
The Fourth Amendment provides: ‘The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things
to be seized’. US Const., Am. IV.
14
See In re: Sealed Case, 310 F. 3d 717 (Foreign Intelligence Surveillance Court of
Review 2002).
UNITED STATES RESPONSES TO SEPTEMBER 11 495

This ‘significant purpose’ amendment, along with provisions in the Act to
authorize broader sharing of law enforcement and intelligence information,
are regularly touted as cornerstones of the investigative portion of the para-
digm of prevention in the war on terrorism proclaimed by Attorney General
John Ashcroft.

Detention and trial by military commission
In those same sombre weeks after September 11, the Bush Administration
crafted a legal scheme for detaining and then trying suspected al Qaeda and
Taliban operatives captured in the war on terrorism. Perceiving that it would
have far more latitude to detain, interrogate, and decide the fate of suspected
terrorists or their sympathizers or financiers if it fashioned a military-type
regime for holding and trying those it then characterized as ‘enemy combat-
ants’, the Bush Administration promulgated a Military Order and there
claimed the authority to detain without time limit any non-citizen whom
the President has ‘reason to believe’ is a member of al Qaeda, is involved in
international terrorism, or has knowingly harboured such members or ter-
rorists.15 The same Order authorized trials of suspected non-citizens accused
of committing ‘violations of the laws of war and other applicable laws’ by
military commissions, outside the traditional civilian and military justice
systems. By early 2002 the United States military removed several hundred
persons from Afghanistan to the United States Naval Base at Guantanamo
Bay, Cuba. In July 2003, the Defense Department announced that six current
detainees at Guantanamo had become eligible for trial by military commis-
sion. In February 2004, the Department of Defense announced that two
Guantanamo Bay detainees, one from Yemen and one from Sudan, had
been charged with conspiracy to commit war crimes and that each would
be tried by military commission.16
Several of the detainees at Guantanamo Bay and their representatives
sought to petition courts in the United States for habeas corpus, on grounds
that the detentions violated a range of protections in the Bill of Rights of the
United States Constitution. They asked for release from custody, access to
legal counsel, and freedom from interrogation. The federal statute providing
for habeas corpus relief states that federal district courts may entertain habeas
petitions ‘within their respective jurisdictions’.17 The government argued
that detainees at Guantanamo could not sue in any federal court because

15
Military Order of 13 November 2001, Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (2001).
16
‘First Charges Filed Against Guantanamo Detainees’, http://www.defenselink.mil/
releases/2004/nr20040224-0363.html.
17
28 U.S.C. x 2241.
WILLIAM C. BANKS
496

no federal court can have jurisdiction where the United States is not sover-
eign. Lower courts reached inconsistent results on the petitions,18 prompting
the Supreme Court to grant review. Arguments were heard in April 2004, and
in late June the Supreme Court held that the habeas corpus petitions could be
brought in a federal court in the United States.19 According to the Court,
‘respective jurisdiction’ refers to the place where the responsible detaining
officials may be found. When the government holds detainees in foreign
territory over which it exercises effective and permanent control but not
otherwise within the jurisdiction of any federal court, a petition for habeas
corpus may be brought in any federal court that has jurisdiction over the
President. United States control over Guantanamo was based on an effec-
tively permanent lease granted by Cuba in 1915. Writing in dissent for three
members of the Court, Justice Scalia warned that the decision would have
disastrous consequences because prisoners held by the Americans anywhere
in the world under the effective ‘jurisdiction and control’ of the United States,
including those in Iraq and Afghanistan, could take advantage of domestic
laws and sue the United States in its courts.
The Administration also acted in 2002 to detain indefinitely two American
citizens it labelled as enemy combatants, without charges and without access
to counsel. Unable to rely for authority on the Military Order, the
Administration justified the citizen detentions on the basis of the
September 2001 Use of Force Resolution and on the President’s authority
as Commander-in-Chief. Yaser Hamdi was allegedly captured on the battle-
field in Afghanistan, transferred to Guantanamo Bay, and then to a military
brig in South Carolina once his United States citizenship was determined.
Jose Padilla was detained as he stepped off a commercial flight in Chicago. At
first Padilla was held in civilian confinement in New York City as a material
witness to the September 11 attacks, but then he was declared an enemy
combatant and was transferred to the same military facility as Hamdi.
On the same day it announced the ruling permitting the Guantanamo Bay
detainees to sue in federal court, the Supreme Court ruled on the appeals of
Yaser Hamdi and Jose Padilla. Hamdi’s father brought a habeas corpus
petition on his son’s behalf and alleged that Hamdi was not fighting with
the Taliban against the United States, but had travelled to Afghanistan as a
relief worker. The government answered with an affidavit signed by a
Department of Defense official that Hamdi was with a Taliban unit and had
a Kalashnikov rifle in his possession when his unit surrendered to the

18
See Odah v. United States, 321 F. 3d 1134 (D.C. Cir. 2003) (non-resident aliens cannot
appeal to the protection of the Constitution or laws of the United States); Gherebi v. Bush,
352 F. 3d 1278 (9th Cir. 2003) (habeas corpus may be available because the detention
facility at Guantanamo Bay is effectively subject to US jurisdiction and control).
19
Rasul v. Bush, 124 S. Ct 2686 (2004).
UNITED STATES RESPONSES TO SEPTEMBER 11 497

Northern Alliance. Hamdi’s father then asked either that his son be released
or that the government substantiate its claims in support of the affidavit.
Although the lower federal court agreed with Hamdi, the court of appeals
ruled that the Constitution empowers the President to detain any person
captured in a theatre of military operations and that no court could review
the President’s designation of such an enemy combatant.
The Supreme Court reversed the decision of the court of appeals and
ordered new proceedings in the district court.20 According to the controlling
plurality opinion of Justice O’Connor, Congress had authorized the deten-
tion of enemy forces captured in battle in its September 2001 Use of Force
Resolution. The question was not one of the President’s authority then, but
whether the detention of American citizens without judicial review violates
the Fifth Amendment command that no ‘life, liberty, or property’ be taken
without ‘due process of law’. After balancing the competing interests of
Hamdi and the government, Justice O’Connor found that the detainee
‘must receive notice of the factual basis for his classification, and a fair
opportunity to rebut the Government’s factual assertions before a neutral
decisionmaker’.21 Hamdi has the right of access to counsel for his further
proceedings and because the only legitimate purpose of detention without
trial is to prevent an enemy from fighting again, the citizen may not be
detained when hostilities have ended in the place he allegedly fought.
The case of Jose Padilla was more difficult for the government to defend
and for the Court to decide because Padilla was not captured on a battlefield
and, once detained, never presented a security danger to the United States.
After he was transferred from civilian detention as a material witness in New
York to the same military detention facility as Hamdi in South Carolina, his
lawyer filed a habeas corpus petition in the federal court in New York, naming
Secretary of Defense Rumsfeld as defendant. In contrast to the Hamdi
proceedings, the district court ruled that the President has unreviewable
discretion to detain enemy combatants, while the court of appeals reversed
and held that the government could not detain Padilla without charging him
with a crime.
The Supreme Court reversed in a 5–4 decision and held that Padilla’s
lawyer sued the wrong person in the wrong court.22 Based on the majority’s
reading of the habeas corpus statute, Padilla had to sue his immediate
custodian, the commander of the naval brig in South Carolina, in the federal
court in South Carolina. Although the four dissenters accused the Court of
using an unnecessarily rigid reading of the statute to effectively decide ‘ques-
tions of profound importance to the nation’, the Court was able to decide


20 21
Hamdi v. Rumsfeld, 124 S. Ct 2633 (2004). Ibid.
22
Rumsfeld v. Padilla, 124 S. Ct 2711 (2004).
WILLIAM C. BANKS
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Hamdi, the case with facts more favourable to the government, by mildly
rebuking the government, and then duck the harder case on a technicality.

II. Changes in policy
Organizing for Homeland Security
September 11 also produced an almost immediate policy response, in the
form of creating a White House Office of Homeland Security, charged ‘to
develop and coordinate the implementation of a comprehensive national
strategy to secure the United States from terrorists’ threats or attacks’.23
Within a few months, the difficulties associated with a subordinate White
House official attempting to influence the activities and spending in a range
of federal agencies led the President to agree to propose that the Congress
approve a new cabinet-level department with a Secretary subject to approval
by the Senate. In November 2002 the Department of Homeland Security
(DHS) was created,24 in the largest restructuring of government functions
and agencies since the creation of the Department of Defense in 1947. The Act
merges all or part of 22 agencies and 170,000 employees into the DHS, and it
charges the Department with analyzing terrorist threats, guarding borders
and airports, protecting critical infrastructure, and coordinating the response
to future emergencies.
After nearly two years, DHS has little to show for its efforts beyond a
maddening colour-coded threat advisory scheme,25 an ill-advised mention by
DHS officials that Americans should stock up on duct tape,26 and a massive
agenda. More than $6 billion has been spent on airline security since
September 11, although it is commonplace to criticize policies like those of
the Transportation Safety Administration as ‘fighting the last war’. The
technological centrepiece of the plans for enhanced airline security – the
Computer Assisted Passenger Pre-Screening or CAPPS II programme –
suffered a serious setback when privacy concerns and technical problems
persuaded the agency not to implement the programme and to consider other
security options. The CAPPS II programme would utilize data mining

23
Office of the Press Secretary, The White House, President Establishes Office of Homeland
Security, 8 Oct. 2001, summarizing Exec. Order 13,228, 66 Fed. Reg. 51,812.
24
Homeland Security Act of 2002, Pub. L. No. 107–296, 116 Stat. 2135 (2002).
25
See Edward N. Luttwak, ‘Damage from the Alert System is Alarming’, Los Angeles Times,
19 Jan. 2004, B.13; Dan Eggen, ‘GOP Lawmaker Urges Reform of Terror Alert System;
Rep. Cox Backs Legislation That Would Mandate a More Regional Approach’,
Washington Post, 29 December 2003, A07.
26
John Mintz, ‘Terror Attack Steps Urged; Officials Suggest Water, Other Supplies,’
Washington Post, 11 February 2003, A01; Kenneth Chang and Judith Miller, ‘Threats
and Responses: Protective Devices; Duct Tape and Plastic Sheeting Can Offer Solace, if not
Real Security’, New York Times, 13 February 2003, A21.
UNITED STATES RESPONSES TO SEPTEMBER 11 499

technology to scan passenger lists against a wide array of threat information
and, through the high-speed screening, identify passengers who should
undergo additional scrutiny before they are allowed to fly.27 The Fourth
Amendment may not protect passengers against inappropriate government
mining of personal information from private databases because individuals
have no reasonable expectation of privacy in information voluntarily sub-
mitted to third parties. Nonetheless, the spectre of sweeping up millions of
innocent airline passengers in a data mining exercise designed to identify a
few security risks caused officials to revisit the programme in search of more
finely tuned measures.28
The Department’s efforts to centralize the coordination of homeland
security intelligence information have faltered due to the continuing presence
of independent intelligence missions in the FBI and CIA, which are not tasked
with reporting to DHS. The DHS Directorate for Information Analysis and
Infrastructure Protection (IAIP) collects intelligence from agencies through-
out the government, analyses it, and disseminates it for use in counter-
terrorism.29 Its objective is to ‘connect the dots’ in ways that avoid the
intelligence failures that preceded September 11. However, the Terrorist
Threat Integration Center (TTIC), managed by the Director of Central
Intelligence, was created by the Bush Administration in 2003 to perform
largely the same tasks, although the TTIC mission extends to threats to the
United States abroad.30 Later in 2003, the President ordered the creation of a
third counter-terrorism intelligence entity – the Terrorist Screening Center,
administered by the FBI.31 There is considerable overlap in function among
the three agencies, and confusion within federal and state government about
their roles.
One of the principal roles for DHS is to provide a systematic and unified
federal response to a terrorist attack. The Department absorbed the Federal
Emergency Management Agency (FEMA), along with other agencies that
have specialized roles in crises. With the creation of DHS, the Department
supplies centralized communications and guidance toward coordinating the
work of other federal, state and local agencies. A series of Presidential


27
Ricardo Alonso-Zaldivar, ‘US Rethinks Air Travel Screening’, Los Angeles Times, 16 July
2004.
28
Jeremy Torobin, ‘TSA Grounds Controversial Passenger-Screening System Due to Privacy
Concerns’, Cong. Qtly. Daily, 15 July 2004.
29
Homeland Security Act of 2002, Pub. L. No. 107–296, 116 Stat. 2135 (2002), xx 201(d);
202(b)(2).
30
White House News Release, Fact Sheet: Strengthening Intelligence to Better Protect
America, 28 January 2003.
31
Homeland Security Presidential Directive/HSPD-6, Integration and Use of Screening
Information, 16 September 2003.
WILLIAM C. BANKS
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directives have begun to spell out roles and missions for the important players
in responding to a terrorist incident. However, to date no clear guidance has
been given to make clear the specific lines of responsibility of federal, state,
and local agencies and officials.32 In addition, the effort to interdict or
minimize the effects of a domestic terrorist attack with weapons of mass
destruction has been complicated by the assignment of a domestic combatant
command for the military, without further elaboration of its roles and
missions, and by the structural difficulties posed by our federal system,
where authority to respond to domestic emergencies resides primarily with
the states and cities.

Pre-emption and the Iraq war
During the consideration of the new Department in Congress, the National
Security Strategy of the United States and National Strategy for Homeland
Security33 were announced by President Bush, both of which emphasized the
increasingly important role for the military in protecting the United States
from terrorism. The National Security Strategy proclaims for the first time in
the history of the United States the doctrine of pre-emption – striking terrorists
before they strike.
The United States can no longer solely rely on a reactive posture as we have
in the past. The inability to deter a potential attacker, the immediacy of
today’s threats, and the magnitude of potential harm that could be caused
by our adversaries’ choice of weapons, do not permit that option. We
cannot let our enemies strike first . . . Traditional concepts of deterrence
will not work against a terrorist enemy whose avowed tactics are wanton
destruction and the targeting of innocents; whose so-called soldiers seek
martyrdom in death and whose most potent protection is statelessness . . .
The greater the threat, the greater is the risk of inaction – and the more
compelling the case for taking anticipatory action to defend ourselves, even
if uncertainty remains as to the time and place of the enemy’s attack. To
forestall or prevent such hostile acts by our adversaries, the United States
will, if necessary, act preemptively.34
Arguably, pre-emption is only the next step in the gradual metamorph-
osis of the customary doctrine of self-defence. Classically, self-defence by
nations was permitted only when the need was immediate, when there was



32
In February 2003, the White House published Homeland Security Presidential Directive/
HSPD-5, Management of Local Incidents. HSPD-5 announces the development of a
National Response Plan (NRP). A draft plan, 30 September 2003, is available at http://
www.dhs.gov/interweb/assetlibrary/Initial_NRP_100903.pdf.
33
Both available at http://www.whitehouse.gov/homeland. 34 Ibid., at 9–10.
UNITED STATES RESPONSES TO SEPTEMBER 11 501

no moment for deliberation.35 Yet the speed and lethality of modern
weaponry and the lack of warning associated with a covert attack render
the traditional doctrine unworkable in a world of terrorists with weapons
of mass destruction.36 However, if not anchored by some standard of
proof, to link the pre-emptive strike to a reasonably likely provocation,
and some indication of the imminence of an attack, or the repetition of
an attack that has already occurred, pre-emption as a defensive strategy
against terrorism is too blunt an instrument and risks merely escalating
cycles of violence.37
The 2003 war with Iraq is illustrative. Unlike the 1991 Gulf war, the 2003 war
was not conducted with the approval of the United Nations Security Council.
Although the Security Council ‘deplored’ Iraq’s failure to disclose fully or grant
United Nations inspectors unconditional access to its programmes and sites for
weapons of mass destruction, and found Iraq to be in ‘material breach’ of its
various earlier resolutions, Iraq was given one ‘final opportunity to comply’ in
November 2002.38 However, on 16 October 2002, Congress approved a joint
resolution that authorized the President to use military force against Iraq ‘as he
determines to be necessary and appropriate in order . . . to defend the national
security interests of the United States against the continuing threat posed by
Iraq’.39 Thus, when the President launched the war in March 2003, he likely had
all the domestic law authority he needed.
It was generally agreed, however, that the war was initiated by the United
States in violation of international law. There was no imminent threat to the
United States from Iraq in March 2003. The factual predicates for a defensive
use of force – a serious, imminent, and continuing threat of a lethal attack –
were simply not present. Although the congressional resolution cited such a
threat and the President described Iraq in such terms in his 2003 State of the
Union message, the threat was neither serious nor imminent. No weapons
of mass destruction have been found in Iraq, and the Senate Select
Committee on Intelligence has found that most of the information available
in the October 2002 National Intelligence Estimate concerning Iraq’s weap-
ons programme was ‘overstated’ or ‘not supported by’ the underlying


35
See, VI The Works of Daniel Webster 261 (1851), quoted in Stephen Dycus, Arthur L.
Berney, William C. Banks, and Peter Raven-Hansen, National Security Law (New York,
Aspen Publishers, 2002), at 355.
36
Ruth Wedgwood, ‘Responding to Terrorism: The Strikes Against bin Laden’ (1999) 24
Yale J. Int’l L. 559.
37
Jules Lobel, ‘The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and
Afghanistan’ (1999) 24 Yale J. Int’l L. 537.
38
S.C. Res. 1441, U.N. Doc. S/RES/1441 (2002).
39
Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No.
107–243, 116 Stat. 1498 (2002).
WILLIAM C. BANKS
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intelligence.40 In a similar vein, before the war the President also asserted ties

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