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[Yurica Report Editor's Note: This article is deemed relevant for comparison purposes. The U.S. Senate recently, November 10, 2005, voted to do away with Habeas Corpus rights for detainees who are being held indefinitely without charges. In so doing, the Senate was overriding the Supreme Court which gave detainees the right to challenge their detentions in U.S. courts. Read about the startling vote here.]
From the New York Times
December 17, 2004
British Court Says Detentions
Violate Rights
By LIZETTE ALVAREZ
LONDON, Dec. 16 - Britain's highest court ruled Thursday that
the government could not continue to indefinitely detain foreigners
suspected of terrorism without charging or trying them, saying
the practice violated European human rights conventions.
A special panel of nine law lords of the House of Lords, England's rough equivalent to the Supreme Court, ruled 8 to 1 in favor of nine foreign Muslim men, at least one of whom has been in detention for three years. Most of the men are being held in Belmarsh prison in London, which has been called "Britain's Guantánamo" by human rights groups.
In a powerfully worded, groundbreaking decision, the lords said the unlimited detention policy was draconian, discriminated against foreigners and was unjustifiable, even in the face of possible terrorist attacks.
The law lords deemed the detentions a clear violation of the European Convention on Human Rights, which applies to all European Union nations, in a ruling that removes one of the government's most significant antiterrorism tactics.
The ruling paralleled a June decision by the United States Supreme Court that those regarded as enemy combatants at Guantánamo Bay, Cuba, must be given the ability to challenge their detention before a judge or other neutral "decision maker." That ruling stated, "A state of war is not a blank check for the president."
Taken together, the rulings complicated the efforts of the two strongest allies in the campaign against terrorism.
Charles Clarke, in his first day on the job as home secretary, said that he would not immediately release the detainees and that it was up to Parliament to amend the law in accordance with the law lords' decision.
Using perhaps the sharpest language of the nine British justices' separate opinions, Lord Hoffmann said the case was one of the most important decided by the House of Lords in recent years.
"It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention," he wrote, and went on to say that the detentions posed a greater threat to the nation than terrorism.
"The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these," Lord Hoffmann wrote. "That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory."
The British ruling is also a strong example of the increasing interdependence of domestic and international law, at least outside of the United States. While American law derives from British legal tradition, on Thursday, the law lords in London repeatedly cited decisions from the United States Supreme Court to bolster their rejection of the British government's actions. But they did not cite the June Supreme Court ruling.
The government of Prime Minister Tony Blair passed the Anti-Terrorism, Crime and Security Act in 2001, shortly after the Sept. 11 attacks on the United States. To enact the measure, the British government had to invoke an article of the European Convention on Human Rights allowing countries to opt out of certain human rights obligations.
The law, intended to expire in 2006, allows the Home Office to indefinitely detain, without charges, foreigners it suspects of terrorist-related activities who cannot be deported because they would face persecution in their home countries. But the detainees may choose to return to their home countries voluntarily, and they are allowed to go to any other country that will accept them.
The detainees are not told why they are in prison and have no access to the evidence the government holds against them, primarily because the government believes it to be too important to reveal.
They also are not allowed to hire lawyers. Instead, the government has appointed lawyers with security clearance for them and permitted the lawyers to see the evidence and argue on the detainees' behalf. The lawyers, however, have been barred from discussing any of the information with their clients.
Human rights groups said the law, which infuriated Muslims, made a mockery of British civil rights.
The lords ruled that the government should not have opted out of the human rights convention, since nations are allowed to do so only in times of war or of public emergency, and only on a temporary basis. They further noted that Britain was the only European country that had opted out of aspects of the convention.
In addition, the lords found that the government had discriminated against the detainees, also in violation of the convention. They noted that British citizens and those foreigners who can be deported could pose just as serious a threat as foreigners who cannot be deported, yet they do not face indefinite detention.
"What cannot be justified here is the decision to detain one group of suspected international terrorists defined by nationality or immigration status, and not another," wrote Lord Bingham of Cornhill.
The decision confronts Mr. Blair's government with the choice of charging or releasing the men, or modifying the law in Parliament to conform to the Human Rights Convention.
The ruling came at a particularly inopportune time for Mr. Blair, who accepted the resignation of his longtime ally, Home Secretary David Blunkett, on Wednesday. Mr. Blunkett, who was embroiled in a scandal involving a visa application for his former lover's nanny, was a chief architect of Britain's antiterrorism strategy and had been a forceful proponent of using tough tactics against terrorist suspects.
Mr. Clarke, his replacement at the Home Office and the former education secretary, said that it was "ultimately for Parliament to decide" whether and how to amend the law. Mr. Clarke said he would not immediately release the detainees, "whom I have reason to believe are a significant threat to our security."
But Gareth Peirce, one of the lawyers representing the detainees, said the ruling meant the government must move quickly to release them. "There is no escape route for the government, no escape route whatsoever," she told the Press Association, a British news agency.
One of the men, known only as Detainee A, called for his immediate release.
"I hope now that the government will act upon this decision, scrap this illegal law and release me and the other internees," he said in a statement released by Ms. Peirce.
Seventeen men are believed to have been detained under the law; 11 are still in detention, two of whom were not named in the appeal. Of those released, the ruling said, one went to Morocco and one to France; it is unclear where the others are.
One of those still in detention is Abu Qatada, a Syrian cleric Britain believes was a spiritual leader of Mohamed Atta, believed to be one of the leaders of the Sept. 11 attacks.
Human rights groups applauded the decision.
"What defines a democratic country is the rule of law, and a cornerstone of the rule of law is a right to trial by jury and the right to defend yourself with legal representation," said Barry Hugill, a spokesman for Liberty, a group that worked for the men's release.
"This is exactly what was denied these men. Putting people in indefinite detention is what they did in Eastern Europe and in Saddam's Iraq." he added, referring to Saddam Hussein, the overthrown Iraqi leader. "I am told that is what we are fighting against."
Mr. Hugill said human rights groups did not dispute the government's right to charge the detainees and put them on trial.
"That is fine by us," he said. "But if they don't have the evidence, they should be released."
Neal Katyal, a law professor at Georgetown University, said Thursday that what was most notable about the British ruling was how much it paralleled the legal situation in the United States.
"The striking thing about this is the similarity of the claim by the British government to the American government's stance," he said. "Both governments have argued that their courts should have no role in policing these political decisions" about detentions aimed at curbing terrorism. Similarly, he said that the British government, like the Bush administration, tried to rule that noncitizens were not entitled to the same rights as citizens or subjects.
Professor Katyal has brought a successful challenge to the American military's detentions in Guantánamo Bay, Cuba, which is being appealed by the Bush administration. He said the law lords ruling "is a poignant reminder that absolute power coupled with pleas for absolute deference by the courts aren't successful."
"Both the United States and the U.K. live within a constitutional system and it is up to the courts to police where the line gets drawn," he said.
Copyright 2004 The New York Times Company
Neil A. Lewis contributed reporting from Washington for this article.
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