Tag Archives: National Security Law

Tom Hickman: ISIS, passports and Magna Carta: New national security powers raise complex issues

tomOn 1 September the Prime Minister made a statement to Parliament in which he indicated that the Government was considering introducing the following new national security measures:

  • Powers to enable the police to confiscate passports at borders if they suspect an individual is seeking to travel to support terrorism, for a period allowing them to investigate the individual concerned. This will include “safeguards and … oversight”.
  • A power to exclude British nationals from the UK.
  • Placing no-fly list arrangements on a statutory footing.
  • Requiring persons subject to TPIMs to engage with the Prevent programme.
  • Ratcheting-up the statutory restrictions that can be imposed on individuals under the TPIM Act 2011 to include “stronger locational constraints” either through use of exclusion zones or relocation powers.

The announcement followed atrocious acts committed by ISIS in beheading Western hostages and, in particular, the fact that British citizens were implicated. In her Conservative Party Conference speech, the Home Secretary said that a new counter-terrorism bill would be introduced by the end of November.

Although the Prime Minister made a welcome reference to the need to avoid a “knee-jerk” reaction to ISIS, these proposals have a back-of the envelope feel. In addition to clarifying precisely what is proposed, it needs to be understood why these powers are—given those already in existence—required to meet the needs of the police and security services.

Several discussions in the media since the Prime Minister made his statement have demonstrated a lack of understanding of what is proposed and what powers are already available. A survey of how the proposals fit within the suite of national security powers already available is therefore worthwhile.

Removal of passports

Reference is often made by the general public to a person being granted a passport in terms which are intended to mean a grant of citizenship. Correspondingly, people often refer to a person being stripped of a passport when they mean stripped of citizenship. It is often not appreciated, even by lawyers, that as a matter of UK law the grant of a passport is quite separate from the grant of citizenship and that under UK law a national has no right to a passport.

A British citizen benefits from many rights and privileges, including a right of abode in the United Kingdom protected by s.2, Immigration Act 1971. But British citizenship does not entitle a person to a British passport. Under the peculiarities of the British constitution, the Secretary of State retains a power to refuse or cancel a passport under the royal prerogative.

The conferral of a passport is essentially a diplomatic act, which both confirms the identity of the bearer and confirms their status as a British national under the diplomatic protection of the British Crown. British passports include a request on behalf of the British Crown to “all those whom it may concern” to “allow the bearer to pass freely without let of hindrance, and afford the bearer such assistance and protection as may be necessary.” Each passport states that it “remains the property of Her Majesty’s Government …and may be withdrawn at any time.” If a person refuses to return a passport upon request they are presumably guilty of theft.

The power to revoke and refuse passports has long been regulated by a published policy, a policy that was updated as recently as 25 April 2013. The policy states amongst other things that the power may be invoked to stop “British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity”.

The removal of a passport does not therefore affect a person’s right of abode in the UK, which is statutory, nor – rather importantly – does it actually remove a citizen’s right to travel abroad or come and go from the United Kingdom. This is a common law right or freedom that is also embodied in Article 12(4) of the ICCPR, which states: “Everyone shall be free to leave any country, including his own”. The effect of withdrawal of a passport is to frustrate the exercise of that right by denying an individual a universally accepted from of identification and by withdrawing the request of the Crown that he or she be given free passage. But a person who travels abroad having had their passport withdrawn, has done nothing wrong.

The Prime Minister’s proposals relate to the extension of the Home Secretary’s power relating to passports to the police, allowing them to withdraw and confiscate passports for a short period pending an investigation. However, given that the power does not actually preclude a person from travelling abroad—it simply makes it more difficult for them to do so—it doubtful whether an extension of this power is really the right way to approach the issue. A more appropriate power might be a temporary travel ban. But as we shall see Parliament has already made provision for travel bans under the Terrorism Investigation and Prevention Act 2011 (“TPIM Act”) and therefore any such new power needs to be considered alongside those already available under the TPIM Act.

Before turning to the TPIM Act, however, we should consider the power to deprive people of British citizenship under section 40 of the British Nationality Act 1981. This power has historically been used to strip dual citizens of their nationality, allowing them to be either deported or excluded (by a legally separate but often contemporaneous order) from the UK. The Bureau of Investigative Journalism reported in December 2013 that the use of the deprivation power had “dramatically escalated” to prevent jihadists returning to the UK.

A controversial amendment to this power made by section 66 of the Immigration Act 2014, which came into effect in July this year, allows the Secretary of State to deprive people of British citizenship even where this would make them stateless where the individual has committed acts that are prejudicial to the vital interests of the country.

But despite its breadth, the power of deprivation of citizenship has important limitations. The power to render a person stateless does not apply to non-naturalised citizens. It must also be doubtful whether the deprivation power could be used against persons seeking to travel to the Middle East for the first time, as opposed to returning jihadists, since such persons would not have yet done any acts prejudicial to the interests of the UK. Furthermore, it would not be appropriate for this power to be used for the purpose of investigating a suspect, since its effect is permanent.

Of more significance therefore is a power under the TPIM Act to impose a “Travel Measure” on an individual reasonably believed to be involved in terrorism related activity. Schedule 1 paragraph 2 of the TPIM Act establishes a power with the explicit purpose of prohibiting a person from leaving the United Kingdom (or alternatively requiring prior notice before leaving the UK). It also includes a power to surrender a UK passport and to hand-over and not to possess any other passports and travel documents. The TPIM Act also enables the power to be exercised on an urgent basis where required.

TPIMs are usually associated with curfews, tags and limits on association. It is often overlooked that the TPIM Act can be used in a more limited fashion and that a Travel Measure can be imposed whether or not other TPIM Measures are imposed. From the perspective of the authorities, it has some obvious advantages over the passport deprivation power, in particular that it imposes a prohibition on leaving the country and that the prohibition is backed by criminal penalties.

The TPIM Act also has various safeguards for individual liberty, such a requirement for judicial approval of any Measures imposed, special advocate procedure to test the justification for the Measures, requirements to renew and keep the necessity for such measures under review, and oversight of the Independent Reviewer of Terrorism Legislation (“the IR”). Not only does the prerogative not carry with it such protections, the exercise of the prerogative power can be indefinite, whereas any TPIM Measure has a maximum lifespan of two years in the absence of renewed engagement in terrorism related activity.

Therefore if the police have reasonable grounds to believe a person is seeking to leave the UK to engage in jihad abroad they could seek an urgent Travel Measure from the Secretary of State under the TPIM Act. This may require a new administrative process for border police seeking urgent TPIMs, but given that Parliament has established this power – with important safeguards – there would need to be a compelling reason why the police should be conferred an analogous, and less effective, power. There is also considerable value in maintaining centralised decision-making both for consistency of decision-making and as a disincentive against over-use of the power by police. It would also ensure that the safeguards imposed by Parliament were engaged.

It follows that if the Government seeks new powers outside the TPIM Act, it will have to explain why those under the TPIM Act – designed in part for precisely these circumstances – are inadequate. One response may be that persons leaving the UK would not yet have engaged in terrorism related activity, which is the precondition for a TPIM Measure. However, given the extremely broad way that the concept of terrorism related activity is statutorily defined, and the related concept of terrorism, it seems unlikely that the Government would contend that it is not capable of applying to persons who seek to leave the UK to engage in jihad. The Government might say that the power should be exercised on the basis of suspicion rather than reasonable belief (another condition for imposing a TPIM Measure), but Parliament would no doubt take considerable persuading that such a power should be exercised by police on the basis of suspicion alone, not least as Parliament decided when it enacted the TPIM Act that TPIM Measures should only be imposed on the basis of reasonable belief.

Nonetheless, whilst we are entitled to be sceptical given the lack of explanation currently available, there is at least potentially a gap in the Government’s armoury which the new power could fill.

This discussion may have prompted the thought amongst some readers whether it remains lawful for the Secretary of State to exercise prerogative powers intended to prevent a person believed to be involved in terrorism related activity from leaving the United Kingdom, given that Parliament has legislated powers on precisely this issue subject to numerous safeguards. It is a central principle of constitutional law that the prerogative cannot be exercised where Parliament has legislated on a subject. And here resorting to the prerogative rather than seeking a Travel Measure under the TPIM Act denies individuals a right of appeal and many associated protections (including a 2 year limit) that accompany a Travel Measure. Using the royal prerogative to deprive a person of their passport can therefore be used as a means of bypassing the protections in the TPIM Act.

This is perhaps most obvious when persons are deprived of passports after a Travel Measure comes to the end of its 2 year maximum term: the removal of a passport to continue, in effect, the travel restriction based on same factual case is difficult to reconcile with Parliament’s stipulation that Travel Measures will not endure for longer than 2 years in the absence of re-engagement in terrorism related activity.

The Prime Minister referred to litigation seeking to test this point (including one case in which the author acknowledges a role acting for a Claimant) and the Prime Minister stated to Parliament that the Government is preparing legislation in case such challenges succeed.

However, irrespective of such challenges, it is time that the prerogative power to withdraw passports is put on a statutory footing in its entirety. As long ago as 1980 Sir William Wade described the power in his Hamlyn Lectures, as, “a murky administrative area where there is a crying need for clarification and legal right”: Constitutional Fundamentals, Stevens & Sons, p.52. Legislating for the withdrawal of passports would not only give the power a proper democratic basis suitable for the modern era, it would enable proper protections to be put in place for individuals. The incentive for Governments is that it would enable the power to be made more effective by pairing it with actual prohibition on travel and removing the legally problematic overlap of the prerogative and the TPIM Act regime.

Returning to the current proposal, if the police are to be given new powers to temporarily deprive persons of their passports this should be a self-contained statutory power or an extension of the TPIM Act and not an opportunity to provide statutory endorsement by a side-wind for a prerogative power which is out-dated and in need of reform.

Preventing British citizens returning to the UK

The idea that British citizens should be prevented from returning to the UK raises myriad issues, legal, moral and practical. The most immediate legal issue is section 2 of the Immigration Act, which identifies the right of abode as a core incident of citizenship.

But there is also a deeper constitutional principle in play here. Blackstone in the Commentaries wrote in 1765 that, “every Englishman may claim a right to abide in his own country for as long as he pleases; and not to be driven from it unless by the sentence of the law. … For exile, or transportation, is a punishment unknown to the common law…” (Vol i. p.133).

Indeed, it is a mark of how deeply rooted this principle is that any legislation in this field would need to amend or depart from Magna Carta itself, the famous chapter 29 of which (which is still on the statute book) states, “No Freeman shall be …outlawed, or exiled, or any other wise destroyed…” save by lawful judgment of his peers. The Prime Minister appears to have forgotten about Magna Carta. But its sentiments were echoed by Dominic Grieve, the former Attorney-General, who stated in Parliament, “I share the concern that has been expressed about the suggestion that British nationals, however, horribly they may be alleged to have behaved, should be prevented from returning from this country.” (HC Debs 1 Sept 2014 c.32.)

From a more practical perspective, the idea of refusing to allow citizens to return to the UK reflects a sense in which the UK Government would like to think of such individuals as ‘somebody else’s problem’. But such an attitude is unlikely to win favour amongst other States left with the problem of un-returnable British jihadists in their midst, and they may well simply not accept the position of the UK Government and seek to return the individual to the UK.

If individuals return to the UK having acted in a manner inconsistent with their duty of loyalty to this country and to British law then the proper response is for them to face due process of British justice and be prosecuted for one of the wide array of terrorism offences, or for treason.

No fly lists

Just as it is appropriate for the prerogative passport power to be placed on a statutory basis, so should the arrangements for no-fly lists. And for the same reasons: (1) their legal origin and legal effect are obscure; (2) they represent an interference with individual freedom of movement and to come and go from the UK unimpeded; and (3) they lack adequate legal safeguards. The Government’s suggestion that these should be put on a statutory basis is therefore to be welcomed.

TPIMs and Prevent

In principle there is sense in the suggestion that there should be engagement with TPIM subjects other than through the police and MI5, such as through the Prevent programme or possibly the probation service, particularly if combined with a relaxation of their obligations as they near the end of a TPIM and their return to ordinary life. But there are real complexities here particularly if it is sought to compel engagement by imposing it as a TPIM Measure backed by criminal sanctions.

These difficulties arise from three features of the regime: (1) TPIM subjects usually maintain their innocence of the allegations against them and often, although not invariably, of extremist views; (2) they are subject to TPIMs on the basis of secret evidence; and (3) nothing has been proved against them and—a point that is often overlooked—do benefit from a presumption of innocence, which cannot be simply abandoned in this context. In the light of these three factors, it is difficult to see how many TPIM subjects could constructively engage with programmes insofar as those programmes are premised on their guilt, or could reasonably be compelled to do so. Furthermore, such individuals will understandably be fearful that anything they say or do might be deployed against them either in open court or, possibly, in secret.

There is also an important difference in principle between the essentially negative duties imposed by a TPIM, even those which may be enforced by limited positive duties (such as reporting to a police station to prevent overseas travel), and a positive requirement to attend meetings and engage with a prevention-orientated programme.

Therefore whilst there is undoubtedly room for new thinking and new initiatives in this context, the difficulties should not be underestimated and the proposals will require very careful scrutiny.

Relocation powers

The suggestion that the Government might re-introduce the power of relocation that previously existed under the control order regime is a suggestion which will raise concern across the political spectrum (I leave aside the idea of exclusion zones).

In 2011 Parliament accepted that relocation could not be justified given its serious detrimental impact on individuals by cutting them off from family, friends and their local community. It operated as a form of internal exile, justified by reference to secret evidence. It was one of the most resented aspects of the control order regime by affected persons and local communities. Parliament accepted that the financial saving from the surveillance budget that such a power allowed could not justify the encroachment on civil liberties that it entailed.

The Government appears to have drawn the idea (or at least support for the idea) of backtracking from the TPIM Act in respect of relocation from the recent report of the IR. In his report published in March 2014, amongst a number of recommendations for increasing safeguards under the TPIM Act, such as narrowing the definition of terrorism related activity and adopting a balance of probabilities threshold, the IR stated the “the time has now come to revisit the issue” of relocation arguing that, “Locational restraints have the ability to reduce the abscond risk, to rebuild confidence in TPIMs, to disrupt terrorist networks and to reduce the surveillance budget. Relocation was repeatedly described by the courts as proportionate …” (Terrorism Prevention and Investigation Measures in 2013, March 2014, 6.23.)

The IR suggested that the reintroduction of relocation might be accompanied by much greater freedom for a person to travel around the country (albeit not back to his place of residence).

Many people will take the view that a relocation power simply cannot be justified, especially when accompanied by other intrusive obligations, given the low standard of proof (reasonable belief) and the fact that TPIM Measures are supported by secret evidence.

But on the premise that such powers can in principle be justified, they must, at a bare minimum, be supported by clear and compelling justification. We cannot fully analyse the arguments for and against here, but the following remarks can be made.

The first point to note is that the IR has made a range of recommendations and there is a danger in cherry-picking those that one agrees with or which suit the political climate without accepting others that would proved a counter-balance—the IR’s recommended adoption of the balance of probabilities threshold is perhaps particularly important in this respect.

The nub of the justification for relocation is really the potential for reducing the risk of absconding from TPIMs and the associated reduction of the surveillance budget (the IR has stated that relocation saved the Government tens of millions in surveillance costs.)

In terms of the surveillance budget, it needs to be borne in mind that the IR’s proposal of a form of ‘relocation lite’ which would not confine relocated TPIM subjects to a small geographical area may not generate the same savings to the surveillance budget as were facilitated by the control order regime where relocated persons were so confined. We cannot know, but it seems likely that the relocation lite proposal would still require substantial amounts of surveillance (the suggestion of exclusion zones is a fortiori).

Absconding is a problem. But it seems to be associated in the media with TPIMs when in fact 7 of the 9 absconds were under the control order regime and the two absconds under that TPIM regime (Ibrahim Magag in December 2012 and Mohamed Mohamed in November 2013) were the first absconds since 2007. There is also a major difference between TPIMs and control orders relevant to the risk of abscond, which is that TPIMs come to a natural end after two years, thus providing a much greater incentive for individuals not to abscond than existed under the control order regime under which restrictions were imposed indefinitely.

The IR points to the fact that absconding did not occur under the control order regime after relocation was introduced as evidence of its efficacy at reducing the risk of absconding. Of course, relocation will, logically, reduce the risk of absconding to some extent by cutting people off from friends and associates. But its impact under the control order regime was known to Parliament when it prohibited relocation in 2011. Furthermore, the fact that most TPIM subjects have not absconded—and, as explained above, have a greater incentive not to do so than under the control order regime—should not be lost sight of. If looking at the bald statistics alone the question they pose is, could the relocation of all 10 persons who have been subject to TPIMs have been justified to attempt to prevent two absconds? Or to put this another way, can reallocation be justified to reduce a 1 in 5 chance of absconding further? This is not, however, an argument that can be carried by reference to the statistics—apart form anything else the numbers are just too small.

It is also worth emphasising the fairly obvious point that the fact that a measure is more effective does not mean it is justified. Detention in Belmarsh would, for instance, undoubtedly prevent people absconding (as well as resulting in a massive saving to the surveillance budget) but thankfully nobody suggests that detention should be reintroduced.

In a report published in January 2014, the Joint Committee of Human Rights was clear in its view that relocation could not be justified, whilst accepting its contribution to reducing the risk of absconding. It stated: We remain of the view that a power to relocate an individual away from their community and their family by way of a civil order, entirely outside the criminal justice system, is too intrusive and potentially damaging to family life to be justifiable…” (10th Report 2013-14, Post Legislative Scrutiny: TPIM Act para. 55.

Finally, the issue of providing justification also should not, I suggest, be avoided by pointing to the approach of the courts in upholding a number of relocations under the control order regime. The courts are working within a legal regime in which their role and function is restricted. In rejecting appeals from relocation orders, they should not be thought to be endorsing such powers as they are not considering whether a regime including relocation is preferable to a regime of increased surveillance. The regime is taken as a given and the courts ask whether the measure is proportionate within that regime. If, for example, preventing a person from travelling abroad is endorsed as a legitimate aim, and there is evidence that relocation will make it more difficult for the person to travel, the courts are generally reluctant to say that the obligation goes too far, given that Parliament has endorsed the power as available for use for such purposes.

Connected to this is fact that the role of the courts in judging whether a measure is disproportionate remains secondary: they do not say whether a measure should be imposed but whether it is disproportionate to the objective. In AR, for example, Mitting J stated that he favoured a reduction in the individual’s curfew, but the refusal of a reduction could not be said to be disproportionate: “the decision”, he said “is not mine” [2009] EWCH 1376 at 4. The decision that Parliament will be asked to make if the suggestion of reintroducing relocation is carried-through, however, very much its decision and it should not avoid it by pointing to the approach of the courts.


The Government’s announcement of more powers to combat the national security threat posed by ISIS touches upon some fundamental constitutional issues. And it is a mixed bag. On the one hand, it includes suggestions such as preventing British citizens entering the UK and reintroducing relocation powers, which are very troubling; on the other hand it provides an opportunity put other powers, in principle justifiable, such as the withdrawal of passports and no-fly lists, on a more appropriate legal basis.


Tom Hickman is a Reader in Law University College London and Barrister at Blackstone Chambers.

Suggested citation:  T. Hickman, ‘ISIS, passports and Magna Carta: New national security powers raise complex issues’ U.K. Const. L. Blog (9th October 2014) (available at http://ukconstitutionallaw.org/).









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Filed under Human rights, UK Parliament, Uncategorized

Conor Gearty: Liberty and Security

The contemporary discussion about secret trials in the UK echoes earlier controversies about TPIMs, control orders, detention without charge, special advocates, the use of torture – the list seems depressingly endless. Defenders of the rule of law and of human rights appear permanently on the back foot these days, desperate just to stay in the game and having long given up any notion of making the running themselves.  For most of those working in the field (whether as lawyers, activists or scholars), the goal is survival not success.

Why should this be the case?

What has made it so difficult to argue positions that – until really quite recently – were taken largely for granted?

I have been thinking hard about this over the past few months as I have been finalising Liberty and Security, a book to be published later this year (or early next) by Polity Press.  It is about the shape that these words ‘liberty’ and ‘security’ have taken through time and from place to place, how much they have been realised and for how many, and what their standing is today.  In reflecting on these questions I have, I believe, stumbled upon an unattractive global trend, which in the book I call ‘neo-democracy’.

I want to use this short post to explain what I mean by this and – hopefully – start a discussion.

The key to understanding ‘liberty’ and ‘security’-  and therefore to identifying how these words work today – is to see that while their core meaning is not hard to work out, it is the reach of the benefits that each word so powerfully evokes that truly matters.

-       It is the ‘for how many’ issue that mainly concerns me: to whom are liberty and security to be extended?

-       Is it to be to all or just the few?

-       If it is to be to all, is it to be through community, state, non-state, regional or international action?

-        If guaranteed for all, how practical in their reach do these theoretical commitments prove themselves to be?

I think that the central arguments over liberty and security have really always been about this issue of remit rather than of meaning.

My book argues for a particular approach, one that regards the benefits of liberty and security as being rightfully available to all, and thereby capable of reaching (being required to reach) the many rather than the few.  It does not argue the ethic of such a perspective from first principles. Instead it rather takes the moral desirability of universality for granted – as most societies now say they do (whatever about how they truly act). Viewing liberty and security in this all-inclusive way shapes how I approach both the past work these words have done and the present-day reach that (I say) should be consistently accorded to them.

This is not as easy as it looks.

Saying is not doing. A different approach is reflected in the growing presence of walls in divided societies, blatant efforts by the ’haves’  to shut out not only the sight of the ‘have-nots’ but also any opportunity the unlucky many might have to glimpse what a better future would look like.  Israel’s ‘partition fence’ might be the most well-known of these but it is by no means the only one: see http://www.marketplace.org/topics/economy/separation-barriers-world  And when where there are no physical walls, our neo-liberal society has increased embraced metaphorical walls even while it has ostentatiously embraced the virtues of the level playing field.

And important bits of our shared history might be on the side of the neo-democrats.

If we look to the past, neither ‘liberty’ nor ‘security’ has been routinely understood in the broad terms for which I argue. Indeed the primary understanding of liberty and security in the pre-democratic era was always narrowly selective as to who was to benefit from the opportunities afforded the one and the safety delivered by the other.  It was only when the radically egalitarian idea of community self-government took hold on a national scale that liberty and security found themselves open to being wrenched out of their elitist corrals and offered to all.

Democracy gave the universalist reading of liberty and security an entry point and strong support but it could not by itself deliver effortless supremacy for the reach that this approach affords these words.  This was because (as I argue in the book) the democratic victory was itself incomplete, a freedom for all that was invariably not forged afresh but rather tentatively grafted onto a pre-existing society that had been designed for the few.

Old elite readings of liberty and security persisted into the democratic era, jostling for space with their egalitarian interlopers.

This takes me to the central argument in the book, the one that I wanted to flag up in this post.

Around the world we are drifting towards a post-democratic (‘neo-democratic’) model of government.  This is a polity that increasingly wears democratic clothes as a disguise rather than a proud necessity. So we see these old, pre-democratic meanings of the terms returning into popular use, underpinning and explaining readings of liberty and security which remain apparently universal but are now falsely so – words that hide inequality and unfairness by seeming to reach all when in fact in their practical impact they are tailored to the few.

It is not just the so-called emerging democracies that are in reality neo-democratic in this sense: increasingly it is places like the US, the UK and even the UN itself.  Former authoritarian states are reaching up to neo-democracy while the old democracies are stooping down.  They are meeting in the middle, in virtual democracy: this is the world of secret trials, special advocates and so on.

My book argues that we should recover the universal in liberty and security, restoring the egalitarian thrust that drove the turn to democracy that was such an important feature of the evolution of universal freedom.  Such a move has two important allies in its quest to impose its version of the truth, two large-scale movements that have had a beneficial impact across the world.

The first, the rule of law, predates the democratic turn but complements it, maintaining that everyone must be subject to the same laws and (just as critically) that the maker of any given law should not at one and the same time be its authoritative interpreter.

The second, the human rights movement, is of more recent origin (at least insofar as we understand the idea today); the very way that its self-description dedicates itself to all humans reveals the commitment shown by human rights to an egalitarian vision of the world, one in which we all should have a right to the freedoms that were once assumed to be the privilege of the few.   And human rights today also reaches beyond the protection of liberty (narrowly defined) to encompass rich readings of human security, the sort which democratic government once made popular. It is about much more than this or that law, just as it is not about selfish choices masquerading as entitlements – it is about universal freedom.

The neo-democratic turn in contrast wants us to regard democracy, the rule of law and human rights in this sense as outmoded. It wants us to see these ideas  as ‘old hat’, incapable of coping with the challenges of the modern global world, the rise of extremism, climate change, the movement of capital, population growth, refugees, etc.  The proponents of neo-democracy (conscious and unconscious) are happy to see the terms ‘liberty’ and ‘security’ contaminated by misuse, forsaken by those who should love them most as creatures of illusion and hypocrisy.

True liberty and security – that is liberty and security for all and not just the already empowered few – depends on recovering the finest meanings of these terms and then using them as offensive weapons against the onward surge of the over-privileged minority whose ideal world would see liberty and security as their exclusive preserve alone.  They must be resisted. It is time to get back on the front foot.

Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.


Filed under Human rights, Judiciary, UK Parliament

Tom Hickman: Where is the “Justice” in the Justice and Security Bill?

The hugely significant Justice and Security Bill was published by the Government last week and received its first reading in the House of Lords (it is a so-called Lords starter). It follows the Government’s controversial Green Paper on Justice and Security  published in October last year, which was prompted by the Guantanamo Bay litigation (Al-Rawi & Others v Security Service & Others), the Binyam Mohamed Norwich Pharmacal claim and the inquest into the 7/7 terrorist attacks in London. Following its experience in these proceedings, the Government decided to introduce a different system in proceedings involving the Intelligence Services and intelligence cooperation.

The Bill (also considered by Hayley Hooper on this blog) is of real constitutional significance in the UK and no doubt it will also be examined closely by governments abroad, especially in those countries that have inherited a public interest immunity (“PII”) system.

The headline points are these:

  • The Green Paper proposals for “closed material procedure” (“CMP”)—essentially ex parte proceedings with the addition of a special advocate—in civil proceedings have been brought forward (cl. 6-7). The reforms embrace both private law claims in contract and tort and judicial review proceedings. Where a CMP is in place, all material is heard in secret where its disclosure would be damaging to national security: this is not balanced against any public interest favouring disclosure, such as the public interest in the fair administration of justice.
  • Proposals for the introduction of similar “closed” hearings in inquests have been abandoned.
  • The Bill would prevent the disclosure of information in Norwich Pharmacal applications that is held by the Intelligence Services or where it would be damaging to national security or international relations—this would not be balanced against any public interest favouring its disclosure (cl.13(3)).
  • The Intelligence and Security Committee is to be put on a statutory new foundation and made a Committee of Parliament (cl.1) but its membership (cl.1(4)) and ability to view documents held by the Intelligence Services (Sch 1(3)) would continue to be subject to the  approval of Ministers.

This post elaborates only the first of these aspects of the Bill. It does not engage with the major issue of whether the proposal for CMP in civil proceedings can be justified at all. The sole purpose of the present discussion is to examine the proposal for CMP in civil proceedings against the  justification that the Government has itself offered for it.

It is right to say at the outset that the proposed introduction of CMP in civil claims has been made subject to two welcome controls that were not included in the Green Paper proposals. The first of these is that the Secretary of State must apply to the court if the Government wants a closed process to be put in place in any given proceedings.  The Green Paper had proposed that the Secretary of State would decide that CMP should be used subject to judicial review of his or her decision (which in practice would be a largely illusionary control given that the decision would be based on an assessment of secret material). The second is that CMP is to be an option only in national security cases, and will not apply in ordinary police cases or in the context of international relations. (It remains unclear however the extent to which it could apply in criminal cases where surveillance techniques, policing methods or terrorism are in issue.)

These welcome improvements notwithstanding, my submission here is that the Bill as drafted does not reflect the justification that the Government has put forward for the introduction of CMP.

The justification is that it will increase fairness to both parties as well as increasing judicial scrutiny of the Intelligence Services in circumstances where material relevant to a dispute would at present be excluded from the proceedings on the basis that it is covered by PII and therefore inadmissible. This is the “justice” part of the “justice and security” reforms.

In a little more detail the “justice” argument is as follows. In the first place it is said that it would benefit the Government for there to be a CMP because it would allow the Intelligence Services to put forward defences to civil claims that could not be made public, such as for example defences that would embarrass or be objected to by intelligence partners or which would risk revealing sources and methods. Thus in the Guantanamo Bay litigation one can assume that the Government would have wished in its defence to have laid a good deal of blame at the door of the American authorities but if made public this clearly would have had the potential to cause damage intelligence sharing relationships. It is therefore said that to ensure that justice is served public officials must be able to advance their defences in full before the courts and CMP allows them to do this (although it should be noted that other options falling short of CMP, such as in camera proceedings,  are also available).

The second part of the “justice” argument is that use of CMP can be fairer to individuals bringing claims against the Government because such claimants might need to rely on evidence that would be covered by public interest immunity and therefore not available for use in the proceedings. The example that the Government gave in the Green Paper was the case of Carnduff v Inspector Rock, in which a breach of contract claim by a registered police informer was struck out because it relied upon matters that would have been covered by PII. Thus the Government said in the Green Paper,

1.36 … Although the approach taken in Carnduff remains an option that is open to the courts in England and Wales, the Government favours having as many cases as possible tried fully and fairly. To this end, the availability of a CMP in cases involving sensitive information would allow sensitive information to be considered by a court in a manner that is consistent with the public interest. (emphasis in original)

Thirdly and connectedly, the Government has also sought to portray the reforms as enhancing scrutiny and accountability of the Intelligence Services by ensuring that disputes progress before the Courts and the courts are able to view all relevant material in deciding whether the services have acted unlawfully.

But the Bill does not reflect the alleged justifications proffered. It does not advance the position of parties other than the Government. Although judges would be given power to rule on applications by the Secretary of State for a closed procedure under clause 6(1), there is no ability for other parties to seek to invoke a closed process to avoid their case being struck out or to enable the court to consider evidence important to their case that would otherwise by excluded by PII.

Moreover, under the provisions of the Bill as drafted the Government could choose whether to invoke PII or apply for material to be considered by the court in a CMP. The Government would have a clear incentive to opt for PII in relation to material that would harm its case or assist that of its opponent because the material could be excluded altogether from the trial. By contrast, if the Government considered that material assisted its case but would be likely to be excluded by PII, the Government could apply for a CMP to enable it to rely on that material.

Furthermore, although under the Bill (as opposed to the Green Paper proposals) the court would determine an application by the Government for a CMP, the court would be given no discretion to refuse a CMP on the ground, for example, that it would be contrary to the interests of justice. Under the terms of the Bill, the court must allow the Secretary of State’s application a CMP in any case in which there are any relevant documents that would be damaging to national security to disclose. The effect of this is that, under the terms of the Bill as introduced, the Government would be able to bring the veil of secrecy down in civil proceedings involving national security information even where this is contrary to the interests of justice and even if PII procedure would or could operate perfectly fairly and satisfactorily in the case in question. This goes clearly beyond the Green Paper proposals.

Under clause 7(1)(c) a court would be able to rule that material should not be subject to CMP where in its view the information could be disclosed without damaging national security. However, were a court to rule against the Government and hold that material could be disclosed without damage to national security, clause 7(2) contemplates that the Government could “elect” not to disclose the material in any event. This is subject to a power of the court to require the Government to make concessions as to its case if it elects not to disclose relevant material. This clause is a novelty in this field of law. Whilst it is always open to a party to civil proceedings to concede part of the case against it so as to prevent a disclosure obligation arising in respect thereof, the statutory recognition of a right on the part of the Government to “elect” not to disclose material in ordinary civil proceedings (including in judicial review proceedings) is significant as there is no right to elect not to comply with a disclosure order. Leaving aside the appropriateness or otherwise of such a provision, the point for present purposes is that the Government clearly anticipates that it may continue to be necessary for it to concede parts or all of its defence to civil claims in order to avoid the light being shone on the Intelligence Services; and the Bill would give statutory recognition and sanction to such an approach.

Drawing the strings together, it is clear that the provisions of the Bill relating to the use of CMP simply do not correspond to the alleged motivation for the reforms, namely, to advance the interests of both parties and increase scrutiny of Government in civil proceedings involving national security sensitive information. On the contrary, the reforms are clearly directed at establishing a greater degree of control over the disclosure of information held by the Intelligence Services. The veil of secrecy would be cast far wider than under the present law in particular by the removal of the public interest balance which applies to PII applications. Insofar as this is offset by an increase in judicial scrutiny of the Intelligence Services it is an increase in scrutiny that would be wholly at the option of the Government. In other words, the CMP provisions in the Bill are directed entirely at “Security” and the “Justice” motivations (whether these are justifiable or not) have fallen by the wayside.

Thus, to summarise how the CMP provisions as drafted would operate:

  • If it is in the Government’s interests to do so, such as where it has sensitive material that supports its case, the Government can invoke CMP in cases involving national security sensitive information to ensure that such material can be put before the court.
  • If CMP is invoked there is no power for the court to take into account the public interests favouring disclosure of the information, such as exposing wrongdoing, in determining whether documents should be held in “closed” session. If disclosure of the material would cause any damage to national security interests then the Court has no option but to permit a CMP.
  • If the Government invokes CMP in a case but the court rules that documents have to be disclosed because they are not damaging to national security, the Bill would permit the Government to “elect” not to disclose the material.  Whilst the Government would have to make concessions as to its case, the issues would not be scrutinised.
  • If the Government considers that CMP is not in its interests in a civil case, such as where there is relevant sensitive material which harms its case, it can opt instead to claim PII over the information and seek to have it excluded altogether from the proceedings. There is no mechanism by which the other party to the case can apply for a CMP or by which the court can examine the material by way of CMP.
  • If the Government opts for PII and the court orders material to be disclosed the Government can make concessions as to its case to avoid the material being disclosed to the court. Moreover, if the court orders disclosure on the basis that, whilst some damage could be caused to national security interests, the public interest balance favours disclosure of the material, the Bill potentially allows the Government then to apply for such material to be subject to CMP, which the court would have no discretion to refuse (there is nothing which expressly precludes such a second bite at the cherry).

In this light, it is hard to view the Bill in any way other than as a “win win” for the Government. Secrecy is absolute and scrutiny is in its gift. As drafted, the Bill seriously and needlessly exacerbates the departure from equality of arms that is already inherent in the proposed use of CMP in civil claims. Whether or not the Bill is justifiable at all—which, I emphasise, is not a point considered here—much work would need to be done by Parliament to bring the Bill into line with the justifications that have been advanced for it by the Government.

Tom Hickman is a barrister at Blackstone Chambers.


Filed under Human rights, UK government, UK Parliament

Hayley Hooper: The Justice and Security Bill: Some Serious Concerns

The Justice and Security Bill aims inter alia to ‘provide for closed material procedure in relation to certain civil proceedings [and] to prevent the making of certain court orders for the disclosure of sensitive information’. The Bill was introduced into the House of Lords on May 28, 2012 and can be read here. Angela Patrick of Justice has already made sharp and insightful criticism of the Bill on the UK Human Rights Blog which I thoroughly commend to readers of this blog.

For those unfamiliar with this area of law, a Closed Material Procedure (CMP) works in the following way. Usually, subject to exceptions in the common law of Public Interest Immunity (PII), ordinary civil litigations proceed upon the assumption that all relevant information will be disclosed to all parties to the litigation and their legal counsel, and that judgements are pronounced publically in open court. This allows clients to fully instruct their counsel, and the general public to see that justice is being done. In statutory proceedings where a CMP is used, the picture is very different. Courts seized of a CMP conduct both ‘open’ and ‘closed proceedings’ using ‘open’ and ‘closed’ material (evidence), and in turn ‘open’ and ‘closed’ judgments are rendered. During the ‘open’ sessions a claimant can instruct his legal team fully on the ‘open’ material which is disclosed to him. However, the client’s legal counsel cannot see the ‘closed’ material. This material can only be seen by a government appointed, security cleared (i.e. developed vetted) Special Advocate. The Special Advocate, unlike an ordinary legal counsel, does not have a duty towards his client; his duty is only to the court. The Special Advocate can take instructions from his client before he has seen the ‘closed’ material, but can no longer communicate (save at the rarely exercised discretion of the court) once he has seen the ‘closed’ material. This presents severe practical barriers for affected persons who wish to contest the content of the closed material.

A CMP, as envisioned in the Bill, is an alternative to the common law doctrine of Public Interest Immunity (PII), although the Bill does claim to preserve the law of PII.  A PII procedure allows a Minister to issue a certificate claiming that information cannot be disclosed in judicial proceedings because it would damage the public interest for reasons of inter alia national security. The certificate, along with the information on which it is based is then tested by a judge. Clause 11(5)(b) seeks to preserve ‘the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings.’ However, it should be noted that if the British Government previously claimed that the litigations which prompted the Justice and Security Bill, i.e. those of Binyam Mohamed and Bishar Al-Rawi et al, who alleged that the British Government were complicit in their extraordinary rendition and torture, would have been impossible to conduct according to the principles of PII because of the volume of documents (some 250,000) involved. To date no justification has been offered that points to a CMP being a more expeditious manner of dealing with alleged security sensitive material.

Moreover, on March 27, 2012 David Davis MP (Con, Howden) expressed concerns that the then forthcoming Justice and Security Bill might be used to cover up ‘embarrassing’ mistakes made by the British intelligence services MI5, MI6, and GCHQ. In the course of his address to the House of Commons Mr Davis recalled an incident prior to the 9/11 attacks that ‘would very likely have yielded advance information about the 9/11 attack in New York.’ Mr Davis went on to explain that ‘[the] operation was delayed by what can only be described as a turf war between American intelligence agencies, and as a result the intelligence opportunity was lost.’ The information provided to the House by Mr Davis is dramatic, and merits reading. Mr Davis recalled how the US Authorities had used their own ‘State Secrets Privilege’ to prevent the information reaching open court, and expressed concern that the Justice and Security Green Paper, and any future Bill might be ‘misused in a similar way to cover up illegal acts and embarrassments, rather than to protect national security’. The US State Secrets Privilege allows US courts to effectively ‘shut down’ litigation and prevent it from continuing in any way, shape or form, if that court is satisfied state secrets are at risk.

Despite calls for the replication of a US-style state secrets privilege clause in the Justice and Security Bill from the Intelligence and Security Committee, no such clause appears in the Bill, and there has been a welcome increase in judicial control on some aspects of instituting Closed Material Proceedings (CMPs) compared with the original Green Paper proposals. However, several aspects of the Bill still run contrary to the rule of law and should be a cause for serious concern among parliamentarians and the public, generally.

Clause 6(1) of the Bill would allow the Secretary of State to apply to any court seized of civil proceedings to institute a Closed Material Procedure (CMP). The relevant courts in the Bill are the High Court, the Court of Appeal, and the Court of Session (Scotland). If the court considers that said proceedings are ‘relevant proceedings’, i.e. that they could result in the release of information that ‘would be damaging to the interests of national security’ [Clause 6(2)(b)], ‘if that information held by the Secretary of State or a third party would be released to another party then the court must grant a declaration in favour of instituting a CMP. The Court must consider the application for such a declaration in the absence of all of the parties and their legal representation i.e. entirely in secret [Clause 7(1)(b)]. Clause 7 of the Bill is a skeleton provision for future ‘section 6 proceedings’, meaning that much of the rules regarding the operation of these declaration proceedings will be thrashed out in secondary legislation. However, the Bill does currently state that the court must only ‘consider requiring’ the party in possession of the security sensitive material to furnish the other parties with a summary, provided that summary does not disclose sensitive information [Clause 7(1)(c)-(e)]. The absence of even a summary being provided to the other party in civil proceedings would create a fundamental inequality of arms between the parties contrary to the principles of natural justice.

Clause 7(1) also has clear human rights – specifically procedural fairness – implications. The government has already made a section 19(1)(a) declaration that the Bill is compatible with the Human Rights Act 1998 (made by Lord Wallace of Tankerness) and Clause 11(5)(c) mandates that nothing in Clauses 6 through 10 is ‘to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention.’ The concern is that this might yet be a hollow protection for litigants in civil proceedings. Closed Material Proceedings have been deemed to be compatible with Article 6 ECHR by the UK Courts, but the amount of disclosure required in civil litigations of the type envisaged by the Bill remains moot. Essentially, both the UK and the European courts are developing a jurisprudence which suggests that the amount of disclosure required to an affected person in litigation involving national security depends upon the subject matter of the activity impugned, and the interest of the affected person which has allegedly been infringed. In national security cases, the European Court of Human Rights has already drawn a distinction between two situations in which Article 6 applies to national security activity, leaving civil proceedings for damages in uncharted terrain between two outposts.

Where personal liberty is at stake under Article 5(4), the ECtHR ruled in A v United Kingdom that the Convention requires enhanced disclosure of the ‘gist’ of the security sensitive information against an applicant so as to allow an effective challenge to the case against him. The UK House of Lords adopted this ruling with respect to Article 6(1) ECHR in Home Secretary v AF (No. 3) which concerned disclosure in control order proceedings. By contrast,  in Kennedy v United Kingdom and Home Office v Tariq the ECtHR and the UK Supreme Court respectively concluded that the activities of covert surveillance and security vetting were both of a different nature from control orders and did not create sufficiently grave infringements of rights so as to attract the protections of the enhanced disclosure requirements of A v United Kingdom. In Tariq Lord Dyson opined on behalf of the majority that ‘[on] any view, discrimination is a less grave invasion of a person’s rights than the deprivation of the right to liberty.’  In the majority view only the infringement of the physical liberty of the subject, for example, by the imposition of a control order or actual detention will attract the protection of the ratio in Home Secretary v AF (No. 3). Potentially, then, the worst consequence of construing ‘A-type disclosure’ in terms of requiring a ‘liberty interest’ in the manner adopted by the majority in Tariq would be that ‘A-type disclosure’ might not be available in future tort actions subject to a statutory CMP. However, it is hoped that where the complaint involves alleged active participation in or complicity in torture in breach of Article 3 ECHR or other international instruments then ‘A-type disclosure’ will be insisted upon by the courts.

Clause 13 headed ‘Norwich Pharmacal and Similar Jurisdictions’ also raises serious concern about the transparency and accountability of the intelligence services under the Bill. A Norwich Pharmacal claim is a principle of disclosure in civil proceedings whereby A seeks disclosure from B of information held (innocently or knowingly) which relates to a wrongdoing against A by another party ‘C’ and A seeks disclosure from B in connection with proceedings by A against C.

In its present form Clause 13 aims to override the court’s Norwich Pharmacal jurisdiction at common law where the information sought to be disclosed is ‘sensitive information’ [Clause 13(2)]. Clause 13(3) defines ‘sensitive information’ in an extraordinarily broad manner to include any information held by or on behalf of an intelligence service (whether domestic, or foreign intelligence services), relating to an intelligence service, or  specified or described in a certificate issued by the Secretary of State, as information which B should not be ordered to disclose. In other words, the information sought to be disclosed need not be sensitive, it may be entirely routine, yet disclosure would be prohibited under this Bill. This runs contrary to the parallel principle of Public Interest Immunity law expounded in Conway v Rimmer which states that ‘class claims’ for exclusion of information on public interest cannot be made, and that a judge must make a decision on the content of each individual piece of information. Although there is no direct overlap between the law of PII and the proposed non-disclosure rules in Clause 13, its passage into law would effectively mean that any information of any kind held by, for example, the Secretary of State relating to the Central Intelligence Agency (CIA) on the use of ‘enhanced interrogation techniques’ could not be disclosed to A. In this sense, Clause 13 is the antithesis of the rule in Conway v Rimmer.

Moreover, Clause 13(5) defines disclosure of such information as ‘contrary to the public interest’ not only as causing damage to ‘national security’ but adds the significantly broader and more malleable category of causing damage ‘to the interests of the international relations of the United Kingdom.’ Clause 14(3) allows for applications to have a Clause 13 certificate to be set aside and permits ‘the relevant court must apply the principles which would be applied in judicial review proceedings’. This leaves the question of intensity of judicial review in the hands of the courts. This is a common legislative practice in national security statutes but it remains to be seen, if the Bill becomes law in its present form, whether review shall be intensive or deferential.

Finally, Clause 13(2) appears to be an attempt to ‘oust’ the residual jurisdiction to order disclosure under the common law principles of procedural fairness. However, no such similar ‘ouster clause’ appears with respect to Clause 6, or proposed ‘section 6 proceedings’. Clause 9 provides that ‘Subject to sections 7, 8 and 10, rules of court relating to section 6 proceedings must secure that the rules of disclosure otherwise applicable to those proceedings continue to apply in relation to the disclosure of material by a  relevant person.’ It remains to be seen, then, whether the courts will infer enhanced disclosure from rights inherent in the common law, or decide that, if the Bill passes into law in its present form, such a jurisdiction has been ousted by parliamentary intention.

If the Justice and Security Bill passes through parliament un-amended the consequences for open justice will be devastating and the prospects of holding government to account over allegations concerning the activities of the security and secret intelligence services will be severely diminished. Parliament must push the Government to take seriously the concerns expressed by the Joint Committee on Human Rights and the Special Advocates, and require Government to publicly explain the necessity of this unprecedented departure, not only to alleviate the concerns expressed by David Davis MP, but also to justify any departure from the fundamental principles of open justice and accountability proposed by the Bill in its current form.


Hayley Hooper is Lecturer at Trinity College, Oxford


Filed under Human rights, UK Parliament

Douglas Edlin: Executing the Laws

Lethal Force and Legal Process

According to Article II, Section 3 of the US Constitution, the President of the United States must “take care that the laws be faithfully executed.”  In a speech delivered earlier this month, Eric Holder, the Attorney General of the United States, offered a legal defense of actions taken by the United States government to kill American citizens living abroad who pose an imminent threat to US national security.  In the speech, Attorney General Holder explained the Obama Administration’s approach to the identification, detention, and prosecution of suspected terrorists.  Holder also explained that, in certain circumstances, the United States must use lethal force rather than the legal process to combat the threat of terrorism.  Here is a brief excerpt:

[J]ust as surely as we are a nation at war, we also are a nation of laws and values.  Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals . . . Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.  This is simply not accurate.  “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.  The Constitution guarantees due process, not judicial process.

After reading this, my immediate thought was:  is that correct as a statement of US law?  And a thought that occurred to me shortly thereafter (with this blog and its readership in mind) was: would this be an accurate statement of UK law?

What Process is Due?

The fundamental requirements of due process are adequate notice and a fair hearing.  The US government may not deprive someone of his life, liberty, or property without first advising him of the claims against him and providing him an opportunity to defend against those claims before an impartial decision maker.

On this understanding of due process, a judicial hearing is not always required.  In the US, as in the UK, administrative agencies and other non-judicial bodies often conduct hearings in which competing claims are resolved and rights are enforced.  This satisfies due process in the absence of a judicial process.

But this does not really respond to Holder’s argument.  The question is whether the government can bypass a judicial process where an American citizen is suspected of “levying War” against the United States, or “in adhering to their [those of the United States] enemies, giving them Aid and Comfort.”  The problem for Holder is that Article III, Section 3 of the United States Constitution specifically anticipates the threat to national security posed by treason and explains how citizens suspected of treason must be treated by the government: “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

The reference to “open court” in Article III, Section 3 seems to indicate that the process that is due to a citizen accused of treason is a judicial process.  It is a hearing in court.  The reference to a person being “convicted of treason” (and the placement of this language in Article III) establishes this as a power held solely by the judiciary.  In fact, in Marbury v. Madison, Chief Justice John Marshall noted that this specific “language of the constitution is addressed especially to the courts.”  The courts alone have the power to convict defendants of crimes, and treason is the only crime defined by the US Constitution.

This reading is consistent with the US Supreme Court’s decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).  In Hamdi, the US government claimed the authority to detain US citizens indefinitely without a hearing.  Although the majority and dissenting justices disagreed about the specifics of the process, they agreed that, at a minimum, due process required the government to give Hamdi notice of its claims against him and an opportunity to contest these claims before “a neutral decisionmaker.”  The majority believed that this neutral decision maker could be a military tribunal or a federal court.  In dissent, Justice Scalia (possibly the most ideologically conservative member of the Court at this time) and Justice Stevens (perhaps the most liberal) concluded that only a federal court hearing would meet the requirements of the Constitution:

“Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime . . . The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property.”

Holder’s claim that the US government may kill a US citizen in the absence of any judicial process seems inconsistent with his reassurances that the United States government may act, even in the fighting of a war, only in a manner consistent with “the rule of law and our founding ideals.”  In her opinion for the plurality in Hamdi, Justice O’Connor was careful to emphasize that “it is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”  Justices Scalia and Stevens expressed their understanding of the relationship between the rule of law and the founding ideals of the US in this way: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

The Hamdi Court held that the US government cannot unilaterally and indefinitely detain a US citizen.  Some judicial process is required to ensure that the requirements of due process are maintained when the US government deprives someone of his liberty.  It would seem that the same process would be needed when the US government intends to deprive a US citizen of his life.

Traitors pose a unique threat, but not an unanticipated one.  In their rejection of shared values and in their access to protected locations and information, their betrayal undermines the security of our lives and our beliefs.  These threats were well known to the authors of the US Constitution.  That is why the language of Article III, Section 3 exists.

A Shared Tradition

In adverting to “our constitutional tradition” in Hamdi, Justice Scalia was referring quite specifically to the Anglo-American constitutional tradition.  The language of Article III, Section 3 itself is adapted from the Treason Act of 1351 (levying war, adhering to enemies, and giving them aid and comfort) and the Treason Act of 1695 (requiring a trial and the evidence of two witnesses to the same act).  In his Hamdi opinion, Justice Scalia includes references to the Statute of Treasons, the Habeas Corpus Act of 1679, and several English cases from the seventeenth and eighteenth centuries.

Is Justice Scalia’s understanding of our constitutional tradition accurate?  If Eric Holder were speaking about British policy, would due process require a judicial process in the UK?  I think the answer is yes.

The argument has been made frequently since 11 September 2001, at least in the US, that evidence of potential terrorist threats may be extracted from detainees through torture (or “enhanced interrogation,” or “degrading treatment,” or whatever one may choose to call it).  In the UK, the courts have refused to accept this argument.  In A v. Sec. of State for the Home Dept. (No. 2), [2005] UKHL 71, the House of Lords reaffirmed the common law prohibition against the use in court of any evidence obtained by torture.

Even more recently, in R (on the application of Mohamed) v. Sec. of State for Foreign and Commonwealth Affairs (No. 2), [2011] QB 218, the Court of Appeal was asked to consider the scope of the prohibition against torture in relation to the principle of “open justice.”  As Justice Scalia did in Hamdi, the Court of Appeal referred to “our shared traditions.”  In Mohamed, the Court was particularly concerned with a court’s obligation to explain the reasons for its decision:

“The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law . . . [T]he principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression.  Ultimately it supports the rule of law itself.  Where the court is satisfied that the executive has misconducted itself . . . all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.”

If Holder were describing British policy, it seems almost inarguable that due process would require some judicial involvement.  As with Hamdi and detention, if the rule of law and British constitutional principles prohibit the British government from torturing individuals suspected of terrorism (or using evidence obtained through torture against suspects), it is difficult to imagine that those same constitutional principles could permit the British government to kill individuals suspected of terrorism without any legal accountability in a judicial forum.

Where an individual claims that the government has violated his fundamental rights, due process requires a judicial process.  The notion that the government may violate the law in the course of executing the law – whether that is in the detention of suspects, the use of torture to obtain evidence, or the summary execution of criminals – fundamentally contradicts the principle that the government is limited by the law.  In our shared constitutional tradition, claims that the executive has violated the law are heard in court:

[T]he English conception of the rule of law requires the legality of virtually all governmental decisions affecting the individual to be subject to the scrutiny of the ordinary courts . . . The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government.  This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators.  (Begum v. Tower Hamlets London Borough Council, [2003] UKHL 5, per Lord Hoffmann)

 The question remains whether and how the UK and US governments can protect their citizens by pursuing terrorist elements and threats in a manner that is consistent with our constitutional tradition.  Maybe it is more difficult for constitutional democracies to fight terrorists.  Maybe that is because what we are fighting for actually makes the fighting more difficult.

Traitors and Terrorists

Benedict Arnold received a trial.  So did Guy Fawkes.  So did John Walker Lindh.

According to Nils Melzer, Targeted Killing in International Law, Britain shifted its police policy after 11 September 2001 to a “shoot-to-kill” approach in certain instances of imminent threats of terrorist violence.  Of course, this is quite different from drone attacks against citizens on foreign soil.  The tragic shooting of Jean Charles de Menezes can be distinguished from the killing of Anwar al-Awlaki in many ways.  One distinction is that al-Awlaki was a US citizen and de Menezes was not a British citizen.  A second distinction is that de Menezes was killed on British soil and al-Awlaki was killed in Yemen.  And another distinction is the activity each man was engaged in immediately prior to his death.  The challenge is to decide which distinctions matter, and which do not, when considering how the UK and the US can combat terrorism without allowing the rule of law to become a casualty of that war.

It is easy for the government to say that it cannot wait when a terrorist is located.  It must act before that individual escapes from view and has the opportunity to plan or carry out an attack against the UK or the US.  It is easy for the government to say that it cannot conduct a trial of a citizen who has taken up arms against his nation.  It has to fight the war first.  But if the threat of terrorism means that the goal must be killing a citizen rather than trying him, even though trying him is what we have done in the past, the principles of law must still control the government.  Not just the principles of the law of war, but the principles of the law of the constitution.  There must be a process by which the rights of that person are considered along with his military value as a target.

This might not be as daunting as it seems.  The judges of the US Foreign Intelligence Surveillance Court have for decades reviewed ex parte requests by the government for permission (or occasionally retroactive approval) to conduct covert surveillance operations in the US.  Congress could create a separate court similar in composition and procedure to the FISC, or amend the Foreign Intelligence Surveillance Act to empower the FISC itself, to permit expedited review of government requests to engage in targeted killing.  The court would be able to review the basis for the government’s claims of imminent threat, the target’s involvement, and satisfaction of the principles of necessity, distinction, proportionality, and humanity, which govern the use of force in war (and which Holder discussed in his speech).  Although this would not provide the traditional judicial hearing envisioned by due process, it would provide judicial involvement in determining the legality of the government’s actions as well as some independent consideration of the rights and interests of the individual involved.

In his speech, Holder claimed that the US will not target one of its citizens without first engaging in “a thorough and careful review.”  Holder also said that the President is not “required to get permission from a federal court before taking action.”  But when the action the President is contemplating is intended to take the life of an American citizen, the Constitution prohibits the government from taking that action without due process.  And in the famous phrase of Justice Brandeis in Crowell v. Benson, 285 U.S. 22 (1932):  “under certain circumstances, the constitutional requirement of due process is a requirement of judicial process.”  The government’s first effort should always be to capture a citizen warring against his nation, and to try him in court, for treason or another crime.  Where that truly is not an option, however, an alternative judicial process, such as the FISC, must be invoked to ensure that lethal force is never substituted for legal process by a government limited by law.

The United Kingdom and the United States must be able to defend themselves from the threats of terrorism, and from the threats of treason.  However unprecedented the threats of terrorism may be, the threats of treason are not new.  For hundreds of years, the UK and the US have used judicial processes to try those accused of betraying their nation.  In a nation of laws and values, it seems impossible to reconcile indefinite detention and torture with due process.  There may be a need for targeted killing.  But a nation cannot defend its principles by violating them.  The shared tradition of the UK and the US requires some judicial process by which the actions of the executive in conducting the war on terrorism may be evaluated according to the principles of Anglo-American constitutionalism.

Douglas Edlin is an Associate Professor and Chair at the Department of Political Science, Dickinson College, Carlisle, Pennsylvania.


Filed under America, Comparative law, Human rights