The company we keep: comparative law and practice regarding the detention of terrorism suspects



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18 Michael Freeman, Freedom or Security: The Consequences for Democracies Using Emergency Powers to Fight Terror 58 (2003); Daniel Moeckli, The Selective "War on Terror": Executive Detention of Foreign Nationals and the Principle of Non-Discrimination, 31 Brook. J. Int'l L. 495, 503 (2006).

19 Michael P. O’Connor & Celia M. Rumann, Into the Fire: How to Avoid Getting Burned by the Same Mistakes Made Fighting Terrorism in Northern Ireland, 24 Cardozo L. Rev. 1657, 1678 (2003); Laura Donohue, Counter-terrorist Law and Emergency Powers in the United Kingdom 1922-2000 (2001).

20 Freeman, supra , at 58. Indeed, IRA leadership claimed that only 56 of those been detained were actually IRA members. Id. Further, the British Army estimated that up to 70% of the long-term internees became re-involved in terrorist acts after their release. Tom Parker, Testimony before Senate Subcommittee on Homeland Security, 2006 WLNR 16329315 (Sept. 20, 2006).

21 Michael P. O'Connor & Celia M. Rumann, Into the Fire: How to Avoid Getting Burned by the Same Mistakes made Fighting Terrorism, in Northern Ireland, 24 Cardozo L. Rev. 1657, 1680 (2003) ("[T]he brutal internment of family members was frequently identified as critical to the decision to join outlawed paramilitary organizations."); David R. Lowry, Internment: Detention Without Trial in Northern Ireland, 5 Hum. Rights 261, 267 (1976) ("[T]he hostility engendered by counter-terror tactics made the Catholic ghettos a safe haven for the Provisional I.R.A."); Philip A. Thomas, September 11th and Good Governance, 53 N. Ir. Legal Q. 366, 385 (2002) (quoting British MP during Parliamentary debate on 1998 bill revoking internment power: "Frankly it has not worked ...we believe that the use of internment would strengthen the terrorists.").

22 Frank Steele, quoted in Tom Parker, Testimony before Senate Subcommittee on Homeland Security, 2006 WLNR 16329315 (Sept. 20, 2006).

23 Id.

24 Terrorism Act 2000, amended by Terrorism Act 2006 Anti-Terrorism Crime and Security Act 2001, Part 4, § 21. The United Kingdom first differentiated the length of pre-charge detention for terrorist suspects from the length of pre-charge detention for ‘ordinary’ criminal suspects through the Terrorism Act of 2000. The maximum length of pre-charge detention for ‘ordinary criminal’ or ‘non-terrorist’ suspects is 4 days. The Act provided for an initial window of 48 hours (from the time of the suspect’s arrest) during which the suspect could be detained without warrant or charge. Upon judicial authorization this pre-charge detention could then be extended, via the provision of a warrant, such that it can last a maximum of 7 days from the initial arrest. The Criminal Justice Act 2003 extended the 7-day maximum to 14 days and the Terrorism Act of 2006 further the maximum to 28 days from the initial arrest though the judicial authority can only extend the warrant by 7 days at a time.

25 Terrorism Act, 2000, c. 11, § 41 (U.K.).

26 Terrorism Act, 2006, c. 11, §§ 19-20 (U.K.). The original maximum was seven days, and was incrementally increased to the current maximum of 28 days.

27 Terrorism Act of 2000, Schedule 8, at 32(1).

28 Id., at ¶ 23.

29 Id., at ¶ 23, ¶29(3).

30 Id., at ¶ 34.

31 Home Office, “Options for Pre-Charge Detention in Terrorist Cases,” July 25, 2007, 6; Jago Russell, “Terrorism Pre-Charge Detention Comparative Law Study,” Liberty (November 2007): 17, citing Oral Evidence to Home Affairs Select Committee, October 19, 2007, Q 7 (Mr. Peter Clarke CVO OBE QPM).

32 House of Commons Home Affairs Committee, Terrorism Detention Powers, Fourth Report of Session 2005-06, July 3, 2006, 1.

33 Cooper Blum, supra , at 20.

34 The U.K.-based NGO Liberty reports that the British system of pre-charge detention far exceeds the detention allowed by any other European nation. Jago Russell, Liberty, Terrorism Pre-Charge Detention Comparative Law Study at 17 (2007), available at http://www.liberty-human-rights.org.uk/issues/pdfs/pre-charge-detention-comparative-law-study.pdf. Others contend that the British system is contrary to basic human rights principles and counterproductive by sacrificing British moral authority and alienating key communities. “UK: Extended Pre-Charge Detention Violates Rights,” Human Rights Watch, July 26, 2007, available at http://hrw.org/english/docs/2007/07/26/uk16491.htm.

35 Gordon Brown, “42-Day Detention; A Fair Solution,” The Times, June 2, 2008.

36 “A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by (a) a point of law which wholly or partly relates to an international agreement, or (b) a practical consideration.” Id.

37 Roach, supra , at 2186-87.

38 A v. Home Secretary, [2004] U.K.H.L. 56, available at http://www.publications.parliament.uk/pa/ld200405/ ldjudgmt/jd041216/a&oth-1.htm.

39 As Lord Bingham explained: “the choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al-Qaeda, may harbour no hostile intentions towards the United Kingdom. The conclusion that [Part 4 is], in Convention terms, disproportionate is in my opinion irresistible.” Id. at ¶ 43.

40 Donohue, “Britain’s Counterterrorism Policy,” at 24.

41 Prevention of Terrorism Act 2005, see http://www.opsi.gov.uk/acts/acts2005/ukpga_20050002_en_1.

42 For example, non-derogating orders may be imposed upon a showing that the Home Secretary has “reasonable grounds” for concluding that the subject “is or has been involved in terrorism-related activity” and “considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.” Prevention of Terrorism Act 2005 at § 2. Judicial review of such determinations is limited to whether the Home Secretary’s determination was “obviously flawed.” Id. at § 3. By contrast, derogating orders require a declaration of public emergency from both Houses of Parliament and an individualized showing that “on the balance of probabilities” the controlled person has been involved in terrorist activity and “it is necessary to impose the order to protect the public from the risk of terrorism.” Id. at § 4.

43 The precise line between derogating and non-derogating orders is not well-defined, but two recent decisions shed some light. In Secretary of State for the Home Department v. JJ, the Law Lords quashed a non-derogating control order, holding that an “18-hour curfew, coupled with the effective exclusion of social visitors, meant that the controlled persons were in practice in solitary confinement for this lengthy period every day for an indefinite duration, with very little opportunity for contact with the outside world, with means insufficient to permit provision of significant facilities for self-entertainment and with knowledge that their flats were liable to be entered and searched at any time.” This was supplemented by the fact that most of the controlled persons were “located in an unfamiliar area where they had no family, friends or contacts, and which was no doubt chosen for that reason.” Moreover, “[t]he requirement to obtain prior Home Office clearance of any social meeting outside the flat in practice isolated the controlled persons during the non-curfew hours also. Their lives were wholly regulated by the Home Office, as a prisoner's would be, although breaches were much more severely punishable.” The Lords held that this combination of factors amounted to a violation of Article 5. Secretary of State for the Home Department v. JJ and others (FC), [2007] UKHL 45, ¶24, available at http://www.publications.parliament.uk/pa/ld200607 /ldjudgmt/jd071031/homejj-1.htm. In a second case, Secretary of State for the Home Department v. MB, the Lords allowed a non-derogating control order that imposed a 14 hour curfew; required the controlled person to wear an electronic tag at all times; restricted him during non-curfew hours to an area of 9-square miles; required that he report to a monitoring company upon leaving his flat after a curfew period had ended and on his last return before the next curfew commenced; rendered his flat open to police search at any time; banned all visitors during curfew hours except the controlled person’s father, official or professional visitors, children aged 10 or under or persons agreed by the Home Office in advance on supplying the visitor's name, address, date of birth and photographic identification; banned his communication with several specified individuals; permitted him to attend only one specified mosque; and confiscated all communications equipment and his passport. This combination of factors, the Lords held, did not violate Article 5. Secretary of State for the Home Department v. MB (FC), [2007] UKHL 46, ¶ 11, available at http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071031/home-1.htm.

44 Human Rights Watch, Letter to the UK Parliament on Control Orders (Mar. 2, 2009), available at http://www.hrw.org/node/81153.

45 Prevention of Terrorism Act, at § 2(1).

46 Id. at § 3(2)-(3).

47 Id. at §3(5).

48 Id.

49 Id. at §3(10)

50 Prevention of Terrorism Act 2005 § 11.

51 Prevention of Terrorism Act 2005 § 11(7).

52Human Rights Watch, “UK: ‘Control Orders’ for Terrorism Suspects Violate Rights,” Mar. 2, 2009, available at hrw.org/en/news/2009/03/01/uk-control-orders-terrorism-suspects-violate-rights.

53 See Secretary of State for the Home Department v. JJ and others (FC), [2007] UKHL 45, ¶24, available at http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071031/homejj-1.htm.

54 Human Rights Watch, Letter to the UK Parliament on Control Orders (Mar. 2, 2009), http://www.hrw.org/node/81153.

55 Secretary of State for the Home Department v. MB and AF, [2007] UKHL 46, available at http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071031/home-1.htm.

56 Secretary of State for the Home Department v. AF; Same v AM; Same v AN; Same v AE, [2008] EWCA Civ 1148; [2008] WLR (D) 320, Judgment of 17 October 2008.

57 European Court of Human Rights, A and Others v. the United Kingdom, Judgment, February 19, 2009.

58 Lord Alex Carlile, First Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005, at 6-8 (2006), available at http://security.homeoffice.gov.uk/news-publications/publication-search/prevention-terrorism-act-2005/laws-against-terror.pdf?view=Binary (reviewing implementation of control orders after amendments).

59 Jeremy Shapiro, Brookings Institution, French Lessons: The Importance of the Judicial System in Fighting Terrorism 2-3 (Mar. 2003), available at http://www.brookings.edu/~/media/Files/rc/articles/2003/03france_shapiro/ shapiro20030325.pdf.

60 Articles 421-1 et seq. of the Penal Code (as amended in Law 96-647 of 22 July 1996); see also Jeremy Shapiro & Benedicte Suzan, The French Experience of Counterterrorism, 45 Survival 67, 76 (2003), available at http://www.brookings.edu/~/media/Files/rc/articles/2003/spring_france_shapiro/shapiro20030301.pdf.

61 Articles 421-1 et seq. of the French Penal Code (as amended in Law of 22 July 1996).

62 CCP, art. 144.

63 Human Rights Watch, Preempting Justice: Counterterrorism Laws and Procedures in France, at IV (July 1, 2008), available at http://www.hrw.org/en/node/62151/section/5#_ftnref66.

64 CCP, art. 145-2.

65 Crim. Code art. 421-2-1 (defining “association des malfaiteurs” as “the participation in any group formed or association established with a view to the preparation, marked by one or more material actions, of any of the acts of terrorism provided for under the previous articles.”).

66 Laurent Bonelli, "An 'anonymous and faceless' Enemy. Intelligence, exception and suspicion after September 11, 2001," Cultures and Conflicts, no. 58 (2005), pp. 101-29 (noting authorities’ conviction that “it matters little if a good number of the accused are found to be innocent after spending one or two years in pre-trial detention.”).

67 Human Rights Watch, supra, at IV.

68 Human Rights Watch, supra, at IV (quoting Emmanuelle Perreux, president of a judges’ union called the Magistrates Syndicate).

69 See Elias, supra , at 122. Turkey reformed its Penal Code in 2004 in order to accede to the European Union, and in the process overhauled its approach to terrorist suspect detainees. See Krista-Ann Staley, Revised Turkish Penal Code Comes Into Force as Part of EU Deal, JURIST, 3 June 2005, available at http://jurist.law.pitt.edu/paperchase/2005/06/revised-turkish-penalcode-comes-into.php.

70 Art. 112-130 Law of Criminal Procedure (StPO); Immigration Bill 2003; German Constitution Grundgesetz law.

71 Elias, supra , at Appendix.

72 Crim. Code, of Procedure art. 520 bis (1) (Spain).

73 Organic Law 15/2003 of 25 November 2003, reforming the Code of Criminal Procedure.

74 Crim. Code art. 504(2) (persons accused of crimes punishably by more than 3 years imprisonment may be held may be held in pre-trial detention for up to four years, provided that the case cannot be brought to trial within the default time period of two years).

75 Elias, supra, at Appendix.

76 Human Rights Watch, Setting an Example? Counter-Terrorism Measures in Spain (Jan. 2005), available at http://www.hrw.org/en/reports/2005/01/26/setting-example.

77 Id.

78 Aus. Crim. Code § 105 et seq. Under this same law, control orders may be imposed, but only for up to one year total, which may include curfew, restrictions on movement and communications, and electronic monitoring. Counsel is only entitled to see or request a copy of the order and (where confirmation of a control order is sought) a statement of the underlying facts, though it is possible to deny counsel access to these facts if it would, amongst other things, prejudice national security and/or be protected by public interest immunity. There is no right to appeal. Only two control orders have been issued in Australia to date, for Jack Thomas and David Hicks.

79 Chu Kheng Lim v. Minister for Immigration (1992) 176 C.L.R. 1.

80 The federal statute permits initial detention for up to 48 hours without charge, but detainees may be transferred to state authorities where they may be held an additional 12 days. Terrorism (Police Powers) Act 2002 (NSW) Part 2A; Terrorism (Preventive Detention) Act 2005 (Qld); Terrorism (Preventive Detention) Act 2005 (SA); Terrorism (Preventive Detention) Act 2005 (Tas); Terrorism (Community Protection) Act 2003 (Vic) Part 2A, s 4; Terrorism (Preventive Detention) Act 2006 (WA); Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT); Terrorism (Emergency Powers) Act 2003 (NT) Part 2B. See generally, Katherine Nesbitt, Preventative Detention of Terrorist Suspects in Australia and the United States: A Comparative Constitutional Analysis, 17 B.U. Pub. Int. L.J. 39 (2007).

81 Aus. Crim. Code § 105.8(5).

82 Aus. Criminal Code § 105.14.

83 Aus. Crim. Code §105.51(1). The administrative order must state forth the most basic facts, but need not include any information that is likely to jeopardize national security—even if it is the sole basis for the detention. Aus. Crim Code § 105.19, 105.8(6A). The detainee has no right to review the initial application or the underlying evidence. Attorney communications are permitted but can be monitored. Aus. Crim. Code §§ 105.39. Otherwise, disclosure of the detention—even after release—is strictly barred.

84 Aus. Crim. Code § 105.42(1).

85 Immigration and Refugee Protection Act, 2001 S.C. ch. 27, §§ 77-88 (Can.). See generally Kent Roach, Canada's Response to Terrorism, in Global Anti-Terrorism Law and Policy 511 (Victor V. Ramraj et al. eds., 2005); Kent Roach, Must We Trade Rights For Security?: The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and Britain, 27 Cardozo L. Rev. 2151, 2194 (2006); John Ip, Comparative Perspectives on the Detention of Terrorist Suspects, 16 Transnat'l L. & Contemp. Probs. 773, 802-03 (2007).

86 Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9, ¶ 3 (Can.); see generally Maureen T. Duffy & René Provost, Constitutional Canaries and the Elusive Quest to Legitimize Security Detentions in Canada, 40 Case W. Res. J. Int'l L. 531 (2009) (discussing decision at length); Craig Forcese & Lorne Waldman, Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of “Special Advocates” in National Security Proceedings, Aug. 2007, at 5-10, available at http://aix1.uottawa.ca/~cforcese/other/sastudy.pdf (advocating against the adoption of a special advocate system like the United Kingdom).

87 C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, 2d Sess., 39th Parl., 2007, available at http:// www2.parl.gc.ca/content/hoc/Bills/392/Government/C-3/C-3_2/C-3_2.PDF [hereinafter Bill C-3]; see also Parliamentary Information and Research Service, “Legislative Summary — Bill C-3: An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act,” No. LS-576E (Nov. 2, 2007, rev. Dec. 31, 2007), available at http:// www.parl.gc.ca/39/2/parlbus/chambus/house/bills/summaries/c3-e.pdf.

88 Bill C-3 at cls. 18.

89 Id. at cls. 82(1)-82(3).

90 Id. at cl. 82(5)(a).

91 Id. at cl. 79.

92


93 Craig Forcese & Lorne Waldman, Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of “Special Advocates” in National Security Proceedings, Aug. 2007, at 5-10, available at http://aix1.uottawa.ca/~cforcese/other/sastudy.pdf (arguing against the adoption of a special advocate system); Human Rights Watch, Canada: Parliament Should Amend Bill on Special Advocates (Nov. 17, 2008), available at http://www.hrw.org/en/news/2007/11/18/canada-parliament-should-amend-bill-special-advocates.

94 Roach, supra , at 2194.

95 Bhoumik, supra , at 322.

96 Id. at 322.

97 Id. at 321.

98 The Emergency Powers (Detention) Law 1979 (Israeli citizens); Internment of Unlawful Combatants Law 2005) (non-Israelis in Israel).

99 The current source for detentions in the West Bank is Military Ordinance no. 1226(1988). Until the enactment of the Emergency Powers (Detentions) Law in 1979, the past on Art. 111 of the Defense Emergency Regulations Act (1945). Subsequently, the detention authority has been defined by various military ordinances.

100 See B’Tselem, “Statistics on Administrative Detention,” available at www.btselem.org/english/ Administrative_Detention/Statistics.asp; Amnesty International, “Israel/Occupied Territories: Administrative detention cannot replace proper administration of justice,” News Service No: 219, August 2005, http://asiapacific.amnesty.org/library/Index/ENGMDE150forty-five2005?openandof=ENG-ISR (describing how thousands of Palestinians were held in administrative detention between 2000 and 2005, some of them for more than three years, while during that same time period only four Israelis were placed in administrative detention for periods ranging from six weeks to six months).

101 Military Ordinance no. 1226 at art. 1(a).

102 Id. at art. 4.

103 Id. See also “Administrative Detention: For the Good of Many?,” The Jerusalem Post, October 16, 2008 (“It's based on secret evidence, no witnesses, no questioning of witnesses or the detainee on the allegations or challenges from the detainee to the state. In such circumstances even judges with the best abilities can't function as an effective check on the system.") (quoting Lila Margalit, Association for Civil Rights in Israel).

104 Cooper Blum, supra , at 7; see also Marab v. IDF Commander in the West Bank, 57 (2) P.D. 349, ¶¶ 39, 45 (Isr. H.C.J. 2003) (upholding the denial of counsel).
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