The Counter-Terrorism and Security Bill currently being hustled through Parliament with unseemly haste was announced in a blaze of rhetoric. Theresa May told a rapt 2014 Conservative Party Conference that she wanted to see “new banning orders for extremist groups”. There was talk of re-establishing the Broadcasting Ban (which did so much in the 1980s and early 1990s to help out jobbing actors who could do a passable Gerry Adams impression – Stephen Rea included). “Foreign Fighters” would be prevented from returning to the United Kingdom. Foreign Secretary Phillip Hammond even floated the idea of levelling treason charges against those taking part in Islamic State activities overseas, even though various modern terrorism offences of universal jurisdiction exist. Continue reading “Après Charlie: The Progress of the UK's new Counter-Terrorism and Security Bill”
In a resolutely formalistic judgment, the Supreme Court yesterday rejected a constitutional challenge to the hearing of “ordinary” cases in the Special Criminal Court. Thomas Murphy had been charged with failing to make his tax returns — an indictable offence that is tried usually in the “ordinary courts” — but the DPP certified that such courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Thomas Murphy”.
Before trial, Murphy issued a plenary summons seeking declaratory relief, claiming, inter alia, that the DPP’s power of certification fails to guarantee his right to equality and his right to a fair trial in due course of law before a jury of his peers, and it does not permit the plaintiff argument to be heard before the issue of the certificate, or dispute it afterwards. Moreover, it was claimed that that the exercise of the DPP’s powers could be predicated on false or inaccurate reasons, but there is no means of ensuring disclosure of such reasons, and that review is possible only where mala fides is demonstrated.
The Supreme Court dismissed Murphy’s claims, allowing trial to proceed. Continue reading “Taxes, juries and emergency powers: Murphy v Ireland”
Last week Tom Watson MP (pictured left), chair of the All-Party Parliamentary Group on Drones (APPG), launched a new front in the work of the Group (founded back in 2012). As a parliamentarian with an uncanny ability to spot human rights issues likely to make the headlines and which will hold extended media attention, the subject of drones (both in terms of the UK’s operation of them and its cooperation with the US) was always likely to grab Watson’s attention. But the reason Watson is so high-profile in his myriad pursuits, from trying to bounce Tony Blair into resigning, to vanquishing Rupert Murdock to needling the Government on its drone policy, is his grasp of the role of a backbench MP. Continue reading “Tom Watson’s Triumph? UK Communications Interception, Drone Strikes and the European Convention on Human Rights”
Today Barack Obama announced the broad parameters of his proposed reforms of NSA surveillance (full text). As I wrote on TheConversation, the detail of the reforms will be crucial to determining whether they will merely tidy up the edges of NSA surveillance or have real, operational effects in limiting surveillance activities. However, what was clear in the speech was that the privileging of prevention in the context of counter-terrorism, and the characterisation of the current terrorist threat(s) as ‘new’, technologically advanced and uniquely challenging, are not about to change. As well as commentary and debate on the proposed reforms themselves, which is already coming in spades (see for example the hashtag #NSAspeech on Twitter for excellent and well-informed contemporaneous reaction), this framing of the speech and the reforms warrants some reflection. Continue reading “Obama’s NSA Speech and the Persistence of Prevention”
We are very pleased to welcome this guest post from Rumyana Grozdanova (left). Rumyana is a Deputy Co-Convener of the Human Rights Centre and a PhD student at Durham Law School who is currently researching the US program of Extraordinary Rendition and its effects on the international legal framework. You can contact her here or follow her on Twitter @rgrozdan
On Monday 13 May this year, Associated Press revealed that the US Department of Justice had secretly obtained two months of personal and office phone records of reporters and editors for Associated Press (AP). The records outlined the outgoing phone calls of individual reporters, the general AP office numbers in New York, Washington and Hartford, Conn., and the main phone number for AP in the House of Representatives press galleries; in total, the records for more than 20 separate phone lines were seized – the number of journalists who would have used those phone lines is not known. This highly controversial and worrying intrusion on journalistic freedom and civil liberties has been subsequently defended by US Attorney General Eric Holder with reference to the omnipresent counterterrorism narrative; according to him, a story run by AP had posed a major threat to the security of the American public. Jay Carney, the White House spokesman, in noting that President Barack Obama had not been privy to the actions of the Justice Department, added that a careful balance must be attained between the need for secret and classified information to remain secret in the interests of national security and press freedom and civil liberties. Continue reading “Grozdanova on US Surveillance Leaks”
It was reported earlier this month that the U.S. Secretary of State, Hilary Clinton, has decided to delete the People’s Mujahedin of Iran (MEK) from the blacklist of terrorist organisations compiled by the U.S. Department of State. The MEK exhaustively campaigned for nearly a decade to be removed from the blacklist. Numerous public figures endorsed the MEK’s campaign including the senior foreign-policy adviser to Republican presidential candidate Mitt Romney, Mitchell Reiss. Nevertheless, the question remains as to why the MEK was added to the blacklist of terrorist organisations in the first place?
Fergal Davis of the Gilbert & Tobin Centre for Public Law at the University of New South Wales has posted a thought-provoking paper on SSRN. Entitled ‘The Jury as a Political Institution in an Age of Counterterrorism’, the abstract is as follows:
Trial by jury is under threat. This is particularly true in the context of terrorism. This article will explore the benefits of trial by jury to civil society. It will then consider whether those benefits should give rise to a presumption in favor of jury trial in the terrorism context. Historically, the right to trial by jury has been interfered with on the basis that the threat of terrorism justified an exceptional response. This article will argue that the state of exception arising from States’ responses to terrorism in fact demands the retention of trial by jury.
Davis argues that understanding the jury as a political institution, rather than merely a functional tool of the criminal justice system, allows us to truly understand its importance in cultivating a strong civil society and a healthy democracy. The paper is forthcoming in Politics and is well-worth a read – jury trials are one of the lesser-examined aspects of counter-terrorism and this paper does some useful work in filling that gap.
Some readers may be interested in the recent publication of my monograph, EU Counter-Terrorism Law: Pre-emption & the Rule of Law. The book is the first sustained study of EU legislation in the field of counter-terrorism. It critically examines EU counter-terrorism measures to ascertain how rule of law principles have been affected in the ‘war on terror’. The book opens with an overview of the “war on terror”. It notes that the trend in both the UK and US
has been towards pre-emptive intervention that attempts to eliminate threats to national security before they arise. Building on twentieth-century ideas of risk and actuarial justice, these trends undermine traditional legal protections by shifting the target of law enforcement from acts already committed to action that may be committed in the future.
The book seeks to assess how these developments have had an impact on the rule of law. It develops a critical understanding of the EU rule of law and then goes on to analyse five key facets of EU counter-terrorism: Continue reading “Book Publication: EU Counter-Terrorism Law”
It is now ten years since the United States began to hold suspected terrorists in Guantánamo Bay. At the time, the motivation was clearly to find a place outside of the immediate theatre of war where people could be held and interrogated without oversight from the federal courts. It seemed, to the US government, that Guantánamo Bay was just such a place as it was under the exclusive jurisdiction of the United States but strictly speaking outside of its territory and so—it was thought—outside of the jurisdiction of the courts. Although the number of people detained in Guantánamo is relatively small compared to the number of those held in other detention centres over the course of the War on Terror, including Bagram Airbase near Kabul, the camp has become a lightning rod for rights-based opposition to the United States’ contemporary approach to counter-terrorism. Closing Guantánamo Bay was a central plank of Barack Obama’s election campaign in 2008 and one of his first acts as President was to sign an Executive Order committing to its closure. This followed an important series of decisions (summarised here) by the US Supreme Court confirming that at least some parts of the Constitution applied to Guantánamo Bay and moving it—as I have written before—“towards legality”, i.e. towards constitutionalist oversight. Bearing all this in mind, how can it be that this prison remains open? Continue reading “Why is Guantánamo Bay still open?”
On January 19 next Martin Scheinin, former UN Special Rapporteur for the Protection of Human Rights in the Pursuit of Counter-Terrorism and Professor of International Law at the European University Institute will give a lecture entitled “UN Security Council Terrorist Listing and Judicial Review: The Current State of Play”. The lecture, hosted by the Centre of European Law at King’s College London, will be chaired by David Anderson Q.C. of Brick Court Chambers. Anderson is the Independent Reviewer of Terrorism Legislation and Visiting Professor at King’s College London. The event promises to explore some of the difficult issues surrounding asset-freezing at UN and EU level. The lecture will be hosted at Parliament Chamber at Inner Temple. It is open to the public but registration is required. To register, see the CEL website.