Thursday, 14 January 2010

More on Stop and Search powers

The decision of the ECtHR in Gillan and Quinton has given rise to some interesting comment. See a good contribution by Vicky Conway "Stop and Search and the Human Rights Boundaries" on the Human Rights In Ireland blog.

And in today's Guardian, Sir Ian Blair, former Commissioner of the Metropolitan Police, has argued in favour of the powers ruled illegal by the Court in an article entitled "In defence of stop and search". The main thrust of his argument is that the ends justify the means, and if it was not for such powers the police would victimise suspect communities:
Were the power to be abolished or unduly curtailed in its application ... two
consequences are likely. The first is that it would be almost inevitable that police officers would, as a pragmatic solution, begin to target these kind of searches much more closely on the particular community from which the current threat is seen mainly but not exclusively to come, young Muslims, with all the increase in alienation that would engender. Inconvenience shared must be preferable. Second, and avoidably, Britain would simply be less safe.

This seems to miss the clear points made by the court that firstly, those commuties were actually being targetted under the powers in the Terrorism Act 2000 and presumably the police felt justified and empowered to do that, and secondly, that no one had been charged with any terrorism related offences following a stop and search.

No country should allow their police to justify random and extensive stop and searches under the justification of making terrorists understand (as in airports) "that they are at risk, however covert their behaviour, of being searched and having their details logged at random."

The decision of the ECtHR seems to be lost of Sir Ian Blair. It will be interesting to see if the British Government understand a little better the importance of Article 8 rights in relation to stop and search powers.

Labels: , , ,

Wednesday, 13 January 2010

Gillan & Quinton v. UK - ECtHR rules UK police stop and search powers violate Art 8

The European Court of Human Rights yesterday decided that the UK’s anti-terrorism legislation allowing police to stop and search individuals without reasonable suspicion of wrongdoing breached Article 8 of the ECHR.

Sections 44-47 of the Terrorism Act 2000 provide senior police officer’s with the power to issue an authorization, if s/he thinks it “expedient for the prevention of acts of terrorism” which allows uniformed police officers within a defined geographical area to stop anyone and search them. These provisions go beyond the normal stop and search powers under the Police and Criminal Evidence Act 1984 which require that the police officer has a “reasonable suspicion” that the individual possesses a “prohibited article” or is about to or has committed a crime. The authorizations under the 2000 Act are designed to be temporary lasting only 28 days and only within a limited area. However, the reality of the use of these provisions has seen the entire area of Greater London designated as suitable for searches and the authorization continuously renewed to the extent that the powers operated over a number of years. Thus the extraordinary power was normalized, something that was to have an impact upon the decision of the court.

The case of Gillan & Quinton v. UK was brought following stops and searches of the applicants at a demonstration against an arms fair in London in 2003. Gillan was a protester and Quinton a photo journalist. They challenged their treatment at the hands of the police through a judicial review which was dismissed in the domestic courts (R. v. Commissioner of Police for the Metropolis and another). The House of Lords decision had been criticized for taking a weak approach to judicial review, or even showing excess deference to the executive, in the area of anti-terrorism powers. The court was doubtful that an ordinary search carried out by the police would amount to a lack of respect for a person’s private life. And that even if Article 8 of the convention was relevant the procedure under the 2000 Act was “in accordance with the law” and that it would be “impossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism.”

A case was then brought to the European Court of Human Rights claiming violations of Articles 5 (right to liberty), 8 (right to respect for private and family life), 10 (freedom of expression) and 11 (right to free association).

The ECtHR found a violation of Article 8 and so did not go on to consider the other violations raised by the case. It did, however, indicate that it felt that there was a breach of Article 5. In particular it noted that although neither applicant had been held for longer than 30 minutes they were during that period “entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges.” The court noted that the elements of coercion were “indicative of a deprivation of liberty” within Article 5. This is in contrast to the House of Lords decision in which Lord Bingham concluded that the brief nature of stop and search and the lack of handcuffs/confinement meant there was no “deprivation of liberty”.

In relation to Article 8 the court found that stop and search powers were a clear interference with the privacy of the person.

The public nature of the search, with the discomfort of having personal information exposed to public view, might even in certain cases compound the seriousness of the interference because of an element of humiliation and embarrassment.

The court went on to conclude that the interference was not “in accordance with law” finding that the “wide discretion” provided by the legislation had not been limited by adequate legal safeguards to prevent abuse of the process. The court noted the statistical and other evidence that had been presented to it showing the extent of the police powers under the law.

The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8. In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under s.44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of s.44 abounded….

The court concluded that there were clear risks of discriminatory use of stop and search powers with the data showing a “disproportionate” impact on black and Asian persons. In relation to the case at hand the court also noted that risk that “widely framed” powers could be “misused against demonstrators and protesters in breach of Article 10 and/or 11 of the Convention”.

The decision of the court therefore recognizes the reality of the use of stop and search powers, both in relation to ethnic minorities and demonstrators. The evidence from the Carlile reports powerfully demonstrates the long argued position that allowing the police to stop and search on the basis of a hunch, and without “reasonable suspicion” will have a tendency to result in arbitrary and discriminatory use of those powers.

The judgment of the court therefore criticizes the whole process by which the stop and search powers under the 2000 Act were authorized by both police and the Home Secretary. The lack of control and the ability of the police to stop people based on instinct clearly raised serious concern about the arbitrary nature of the powers. Whilst the immediate response from the UK government was that their lawyers were reviewing the judgment it is interesting to note that the Metropolitan Police took a decision in 2009 to curtail the use of s44 powers.

The seriousness of the situation relating to the police use of stop and search in the UK was emphasized on the day of the courts judgment when the Guardian reported that Kent Police had admitted conducting illegal searches on 11 year old twins at an environmental demonstration. The admission came as part of a court case brought by protests against the policing of the demonstration at the Kingsnorth power station in 2008. The search had been part of a “checkpoint” system set up by the police which saw over 3500 protesters systematically stopped and searched.

Labels: , , , , , ,

Wednesday, 25 March 2009

Northern Ireland Detention challenge successful

A challenge to the continued detention of six suspects in the killings of two soldiers on 7th March 2009 was today successful. The six men were immediately released but Colin Duffy, a prominent republican and former IRA prisoner was immediately rearrested under Section 41 of the Terrorism Act 2000. That re-detention is now the subject of a legal challenge.

The men had all been in custody since the 14th March and had had their detention extended under the UK anti-terror laws which allow for a 28-day detention period. The challenge was made specifically to a decision on the weekend to continue the detention for seven days whilst the PSNI waited for results of forensic tests.

Northern Ireland's lord chief justice, Sir Brian Kerr, quashed the decision to extend the detention period. Giving judgment for three judge panel, Sir Brian Kerr ruled that the County Court Judge, while making her deliberations, had not taken into account whether the suspects' original arrest had been lawful.

Kerr did not himself question the lawfulness of those arrests but said the judge who granted the extension should have examined the issue. He found that the lawfulness of the arrests should be examined, though this did not have to include a detailed analysis of the police’s grounds for the arrest. It was also accepted that it was not necessary to disclose full information “for reasons of public safety”.

As a result of these conclusions the court found that the detention was not lawful. A lawyer for one of the men welcomed the decision saying:
“The decision of the court has backed the position that the defence lawyers have taken from the very start of the arrests. We have always taken the view that not to examine the conduct of arresting officers when considering to detain people under the Terrorism Act has always been a breach of human rights.”

Defence lawyers had also raised a claim that the detention breached the men’s right to liberty under the European Convention on Human Rights. This issue was set aside to allow for a full hearing of the case to be heard in order to quickly address the legality of the detention under domestic law.

The ruling clearly has implication more generally regarding the interpretation and review of detention periods throughout the UK under anti-terrorism legislation requiring the courts to undertake a more thorough review of aspects related to the extended detention of suspects rather including the initial arrest process.

The detention of the men had created a different controversy earlier on the week when the head of the Northern Ireland Human Rights Commission Monica McWilliams criticised the conditions that the suspects were being held in in the serious crime suite of Antrim police station. Professor McWilliams said the holding centre had been designed for detaining suspects for shorter periods than the current 28 days allowed under current legislation.

Two unionist commissioners, Jonathan Bell and Lady Daphne Trimble, have now disassociated themselves from Prof McWilliams' comments, leading to an embarrassing public split in the body.

Ms McWilliams defended her comments and her role, saying she was not there to "reflect populist sentiment".
"I remind those concerned that the commission is charged to independently ensure human rights standards are adhered to and maintained, not to reflect populist sentiment. It is important on such sensitive issues to provide considered and informed responses. It is worth noting that the Policing Board itself reported the lowest level of satisfaction with Antrim station following visits to custody suites throughout Northern Ireland."

UPDATE 27 March

Colin Duffy today appeared in court charged with murdering the two soldiers. He was refused bail and remanded in custody until 21 April when he will appear at Antrim Magistrates Court. Duffy denies all charges. In addition to the two murder charges, Duffy is also charged with five counts of attempted murder and one of possession of a firearm and ammunition.

Labels: , , ,

Friday, 13 June 2008

Primer on US Supreme Court decision on Constitutional Rights in Guantanamo Bay

On June 12th the U.S. Supreme Court handed down its judgment in the combined cases of Boumediene v Bush and Al Odah v United States (judgment). By a majority of 5-4 the Court held, in a judgment written by Kennedy J., that the Constitutional protection of habeas corpus applied to those detained in Guantánamo Bay who, as a result, are entitled to take habeas petitions in federal district courts. The Court further held that the review mechanisms currently operating in the base (i.e. Combatant Status Review Tribunals with limited federal appeal) are not adequate alternatives to habeas corpus and therefore do not preclude habeas petitions. Given the significance of the decision an unusually lengthy post follows on the decision of the Court. interested parties are strongly advised to read also the concurring and dissenting opinions, all of which are spirited and reveal the extent to which the Court is fundamentally divided on the question of executive detention of those identified as terrorists by the Executive branch.

As an initial matter the Court held that Congress has successfully stripped federal courts of jurisdiction to hear habeas corpus petitions brought by detainees in Guantánamo Bay under the statutory habeas provisions. As a result, if the petitioners are to be entitled to bring any habeas claim it must be on the basis of the constitution. [Interestingly the Court did not consider whether there was any basis for bringing such a claim reliant on customary international law or international human rights law treaties, which might have also been a viable (although necessarily weaker) basis for finding in the petitioners’ favour. These international legal arguments were never presented to the Court by counsel for the petitioners, a decision that I criticise in an article forthcoming in the Israel Law Review and available in unformatted form here].

Article I(9)(2) of the U.S. Constitution, known as the Suspension Clause, provides that the privilege of habeas corpus may not be suspended except where invasion or security requires it. This has been interpreted as enshrining a right to habeas in the Constitution (Ex parte Bollman). The main argument proposed by the Government was that this constitutional provision did not apply to the petitioners because they were located outside of the territorial jurisdiction of the United States. this argument was refuted on two bases – firstly the importance of habeas corpus as one of the few rights protected in the US Constitution in its original form, i.e. before the Bill of Rights was introduced (a point I made in the ICLJ and Panoptica in 2007), and secondly the historical meaning of the writ as one that extended to every situation of effective sovereignty even in the absence of formal sovereignty. In an important passage, on p. 15, Kennedy J. holds:

“In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary ill have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account…The separation-of powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.”


In the earlier case of Rasul v Bush Kennedy J. had indicated his belief that the Constitution might run to Guantánamo Bay because it was essentially an unincorporated territory of the United States. This reasoning, heavily influenced by The Insular Cases, arises in a much more central fashion in yesterday’s judgment. On pages 22 – 25 Kennedy J. held:

“Guantanamo Bay is not formally part of the United States… And under the terms of the lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.”…Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base…Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory”.


Building on both of these bases Kennedy J. hands down an extremely strongly worded passage on the extra-territorial application of the US Constitution on p.p. 35-36 that at once constrains notions that the Executive can act with impunity provided it acts extra-territorially and asserts the right of the federal courts to ensure the effective separation of powers no matter where the state may be acting:

“The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.”

Kennedy J. then goes on to identify the three key considerations in assessing whether the Constitutional right to habeas corpus applies in any particular instance of extra-territorial detention: (1) the citizenship and status of the detainee and the adequacy of the process by which a decision to detain was made, (2) the nature of the sites of apprehension and detention, (3) the practical difficulties involved in resolving the petitioner’s entitlement to the writ of habeas corpus (p.p. 36-37). By application of these criteria he held, at p. 41:

“It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting)”

Having held that the petitioners are entitled to habeas corpus or an adequate alternative the Court went on to consider the basic requirements of a review process in order to meet Constitutional requirements. Although Kennedy J. expressly states that the elements identified in the judgment are not exhaustive (p.p. 49-50) he outlines the following: (1) the review process must provide opportunity for the petitioner to make a meaningful case that his detention is unlawful, (2) the review body must have the capacity to order release although that is not the only remedy that might be provided in the occasion of a successful petition, (3) where a person is detained on the basis of executive, rather than court, order the review tribunal must be enabled to conduct a thorough and meaningful review in relation to whether due process has been accorded. In sum, he held, at p. 57:

“For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.”

And, at p. 58:

“[W]hen the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.”

The processes available to Guantanamo Bay detainees under the applicable statutes (i.e. Detainee Treatment Act 2005 and Military Commissions Act 2006) did not, the Court held, satisfy these requirements. The Court held that s. 7 of the Military Commissions Act 2006 is unconstitutional (p.66), and that the Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition (p. 66). In his closing passage Kennedy J. appears to try to placate those who will protest that this decision constitutes an unconscionable burden on the Executive in its attempts to secure the United States against the contemporary threat but nevertheless clearly asserts the Court’s conviction that it is entitled, if not obliged, to ensure that basic principles of the Rule of Law are maintained notwithstanding substantial security threats (p.p. 68-69). The passage, although lengthy, is worth quoting in full:

“In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches…Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not.

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.

Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.”

Labels: , , , , , , ,

Sunday, 27 April 2008

Legal Interpretations and Interrogation Techniques in the War on Terrorism

Today’s lead story in the New York Times reveals how the US Justice Department’s legal advice to CIA agents on acceptable interrogation techniques was worded following the Supreme Court’s decision in Hamdan (2006) that Common Article 3 of the Geneva Conventions applies to Guantánamo Bay detainees. According to the story:

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit “outrages upon personal dignity,” a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments.

….

The legal reasoning included in the latest Justice Department letters is less expansive than what department lawyers offered as recently as 2005 in defending the use of aggressive techniques. But they show that the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules.

The article is a (short) must-read for all those who are interested in the role that law and lawyers have played in the attempts by the United States to reshape international legal standards since 9/11. It also ties in nicely with the papers presented at last Wednesday’s CCJHR seminar entitled ‘How the US Can Lose the War on Terror’ (delivered by John D. Hutson) at which the discussion paper, which I presented, was about lawyers’ complicity. The seminar will soon be available for viewing on UCC Faculty of Law’s video archive, and my discussion paper can be accessed here.

Labels: , , , , , , ,

Wednesday, 23 January 2008

What happens the detainees when the War on Terrorism ends?

University of Pittsburgh’s excellent JURIST blog today reports on a draft bill before the Iraqi parliament which would allow for the release of approximately 5,000 current detainees in Iraq and provide those released with an amnesty. Although there are some quite severe difficulties with the Bill – not least the fact that excludes from its provisions all those in US custody and those imprisoned for, inter alia, adultery and homosexuality – and the fact that it is not targeted as a response to terrorism-related detentions, the Bill’s presentation does raise an important question: what will ‘we’ do with those detained on suspicion of terrorist activities when the ‘War on Terrorism’ ends?

To take Guantanamo Bay as an example, the United States has repeatedly asserted its desire to close the detention facility there but cites concerns about the destination and future conduct of detainees, including reluctance by ‘home states’ to have their citizens repatriated, as one of the major obstacles to closure. In addition, any detainees who may have been subjected to unlawful treatment in detention including torture clearly pose a litigation risk to the United States. To this end, some insurance policies may cover people against mistreatment claims (see NYT piece here). In addition, national security and separation of powers arguments may be successfully used to prevent litigation in US courts by those who claim to be the victims of such ill-treatment. For example, the DC Circuit court last week decided Rasul v Myers in which the court , finding that the claimant could not succeed in a damages claim against the government, held:

The present case involves the method of detaining and interrogating alleged enemy combatants during a war--a matter with grave national security implications. Permitting damages suits by detainees may allow our enemies to “obstruct the foreign policy of our government.” Moreover, dealing with foreign relations is primarily delegated to the executive and legislative branches, see...and creating a damages action could produce “multifarious pronouncements by various departments.” Nor does our government's unanimous condemnation of torture answer this concern, since where to draw that line is the subject of acrimonious debate between the executive and legislative branches. Treatment of detainees is inexorably linked to our effort to prevail in the terrorists' war against us, including our ability to work with foreign governments in capturing and detaining known and potential terrorists. Judicial involvement in this delicate area could undermine these military and diplomatic efforts and lead to “embarrassment of our government abroad.”

Notwithstanding these potential protections from liability, per se, the release of prisoners who claim torture or serious ill-treatment might well have a masive reputational impact on the United States. Writing about this issue in a piece entitled “United States Policy Towards Enemy Detainees in the ‘War on Terrorism’” published in the Human Rights Quarterly, the formidable scholar David Forsyth recently evoked the French-strategy following the Algerian war (i.e. of mass killings to prevent torture victims from speaking out) and wrote:



Accordingly, the democratic French, who had greatly contributed to the theory and practice of human rights, committed torture. And because the French had tortured, they could not put their enemies on trial; instead, they summarily executed them. Their efforts to sweep these atrocities under the rug for many years led to the loss of their self-respect, as well as the respect of many others, starting with the Arab-Islamic world. Torture may have helped the French win the battle of Algiers, but their policy of abuse led to many negatives, including increased domestic criticism and loss of reputation in the world; meanwhile their enemies failed to lessen their struggle. The Bush policy toward enemy detainees replicates much of this French experience.

….

US nationalism after 11 September 2001 has been less intolerant than some periods in US history; the Wilson and McCarthy eras quickly come to mind. But perhaps that is due to the lack of open, vigorous debate and dissent about Bush’s security policies. Given this lack of serious domestic debate, the Bush Administration has been able to sustain its policy of abusive interrogation, even if it has had to clean up detention practices in military facilities. International criticism has been much less important than domestic factors, although the role of the ICRC is not without importance.

The situation is not totally new, not only by comparison to France in Algeria. During the Cold War, the United States then too spoke of freedom and human rights and the rule of law but acted in the shadows to overthrow elected governments and back murderous allies, as in Chile and Guatemala. But to paraphrase Satre in the earlier quote, why should Americans go to such trouble to be patriots if their country in reality stands for torture and other serious violations of fundamental human rights? The French have much to say on the subject.



A law such as that proposed in Iraq is unlikely to solve the problems to be faced by the United States at the ‘cessation of hostilities’ when even its (shaky) IHL grounds for detention are gone, but it may well become time to start thinking about strategy. Although the candidates for presidential nominations from both the GOP and the Democratic party have address Guantanamo and the ‘War on Terrorism’ (for a useful summary of GOP hopefuls' approaches see here), none appear to have come up with a sustained strategy to avoid a repetition of what Forsyth might call ‘the French lesson’.

Labels: , , , , , , , , , ,

Monday, 12 November 2007

Autumn Publications from CCJHR Members

The Autumn saw a number of publications in criminal justice/human rights and other areas of law from staff and research student members of the CCJHR.

PhD Candidate Claire Murray published “Safeguarding the Right to Liberty of Incapable Compliant Patients with a Mental Disorder in Ireland” in the Dublin University Law Journal in which she considers the current legislative provisions concerning the rights of incapable adults in Irish law and argues that they leave incapable adults susceptible to deprivations of liberty. The article then considers the adequacy of constitutional habeas corpus petitions and Article 5, ECHR litigation to vindicate the right to liberty of these incapable adults.

PhD candidate Olufemi Amao also published an article in the DULJ. His article, entitled "Reconstructing the Role of the Corporation: Multinational Corporations as Public Actors in Nigeria", considers the role of corporate governance rules in the protection of various stakeholders affected by the operations of multinational corporations operating in Nigeria. Arguing for a paradigm shift in corporate governance in Nigeria, Amao’s article posits generalisable arguments about corporate governance that, in his words, “advocates harnessing the potentials of the private structure for the public interest”.

Dr. Catherine O’Sullivan has an article in the current issue of the Irish Criminal Law Journal entitled “The Burglar and the Burglarised: Self-Defence, Home-Defence and Barnes” (p. 10). The article concerns the recent Court of Criminal Appeal decision in DPP v Barnes ([2006] IECCA 165) in which a burglar who had caused the death of the homeowner attempted to appeal a murder conviction on the basis of self defence. O’Sullivan contextualises the case in the light of DPP v Nally ([2006] IECCA 168) and the LRC proposals on self-defence (Consultation Paper on Legitimate Defence).

Dr. Ursula Kilkelly has published “Complicated Childhood: the rights of children in committed relationships” in Binchy & Doyle (Eds) Committed Relationships and the Law (Four Courts Press; Purchase).

Dr. Shane Kilcommins and Dr. Barry Vaughan (IPA) published “The Europeanization of Human Rights: An Obstacle to Authoritarian Policing in Ireland” in the European Journal of Criminology. The article explores the extent to which European human rights standards (mostly the ECHR) “temper[..] the shift towards a repressive model of criminal justice by introducing greater regulation and oversight of policing” in Ireland.

Fiona de Londras has published “The Right to Challenge the Lawfulness of Detention: An International Perspective on U.S. Detention of Suspected-Terrorists” in the Journal of Conflict and Security Law (currently available by advance access) in which she considers the role of detention practices of the US in the ‘War on Terrorism’ and advocates the vindication of suspected terrorists’ right to challenge the lawfulness of their detention under international human rights law. She also published a comprehensive text book on The Principles of Irish Property Law (Clarus Press; Purchase).

Dr. Mary Donnelly and Fidelma White have published “Webtraders' obligations under the Distance Selling Regulations 2001—From legal standards to best practice” in The Commercial Law Practitioner (p. 172) in which they consider webtraders' pre-contract information obligations under the European Communities (Protection of Consumers in Respect of Contracts made by means of Distance Communication) Regulations 2001 and principles of best practice that exceed the requirements of the Regulations but that might nonetheless be adopted by webtraders for reputational reasons. The article presents the authors’ arguments in the context of an empirical study of 80 Ireland-based websites.

Labels: , , , , , , , , , ,

Wednesday, 10 October 2007

Guantánamo Bay News

Two interesting developments in the US are worthy of note this morning.

First of all the Government has submitted a 74-page Merits Brief to the US Supreme Court in the Boumediene and Al Odah litigation, which concerns whether or not aliens detained in Guantánamo Bay have constitutional rights. According to the Brief there is a “long standing” constitutional rule that such detainees have no constitutional rights. It is unclear whether by this the Brief means that there is a rule that ‘enemy combatants’ have no such rights, or that ‘aliens’ have no such rights, or that people held in Guantánamo Bay have no such rights (or, indeed, all three). On either interpretation, however, the Brief can be rebutted. Firstly the mere status of ‘enemy combatant’ does not necessarily strip one of constitutional rights (Hamdi); secondly aliens who have a nexus to the US do have constitutional rights although they might not enjoy the full panoply thereof (INS v St Cyr); and thirdly Guantánamo Bay could be defined as an ‘unincorporated territory’ of the US resulting in constitutional rights for those detained there (The ‘Insular Cases’wiki with useful links). There are more expansive internationalist arguments to be made on the final point, but the Insular Cases offer a simple argument based on US precedent to immediately refute the ‘no rights’ claim.

The Brief goes on to argue that even if such detainees did have constitutional rights (and the right they are primarily seeking to exercise is the right to habeas corpus) those rights are not being breached. US constitutional jurisprudence clearly establishes that the constitutional right to habeas corpus can be satisfied by an “adequate alternative” and, according to the Brief, the Combatant Status Review Tribunals offer such an alternative.

The CSRTs were established by Congress in the Detainee Treatment Act but are marred by well-publicised criticisms including lack of equality of arms, admissibility of dubiously-acquired evidence, lack of adequate access to counsel etc that have been notably documented by Prof. Mark Denbeaux and a team of his students from Seton Hall Law School (reports collected here). Ultimately the US Supreme Court – if it finds constitutional rights (as seems likely) – will be required to consider the adequacy of the CSRTs.

The Brief, of course, contains argumentation on further points and can be accessed here, but the case promises to put the issue of constitutional habeas corpus front and centre (finally) in the ongoing Guantánamo litigation. A Reply brief is expected within a few weeks.

The second development of note is a decision in the District of Columbia District Court of Judge Gladys Kessler to block the transfer of a Guantánamo Bay detainee to Tunisia because of the fears that he would be subjected to torture there. The Court held that she would stay the transfer until the Supreme Court had clarified the rights of the Guantánamo Bay detainees.

Labels: , , , ,

Friday, 28 September 2007

17th General Report of the Council for the Prevention of Torture (CPT)

The European Committee for the Prevention of Torture, Inhuman and Degrading Treatment and Punishment (COE) last week released its 17th Report on its General Activities in which secret detentions of suspected terrorists are a primary concern. The right to be free from arbitrary detention, which includes a right to challenge the lawfulness of detention, is provided for in Article 5 of the European Convention on Human Rights as well as in all other major international human rights treaties.

The Inter-American Court of Human Rights has held that the right to challenge the lawfulness of one's detention is a non-derogable right because of the risk posed to people held in detention, including the risk of being subjected to torture (Advisory Opinion on Habeas Corpus in Emergency Situations). The European Court of Human Rights has not to date expressly held that Article 5 rights have a similar non-derogable character, but the focus on detention in this report might suggest an attitudinal shift within the COE to that position. The following passage from the Preface of the Report is particularly interesting and echoes the UN Committee on Torture's conclusion last year that incommunicado detention in itself might be considered torture or inhuman and degrading treatment:

It is disturbing, at the beginning of the 21st century, to be obliged to recall basic principles long enshrined in both national and international law and which one had assumed would be inviolate. Deprivation of liberty must be based upon grounds and procedures established by law, be formally recorded, and be open to review by a judicial authority. Further, all persons deprived of their liberty by a public authority should be held in facilities which are officially recognised for this purpose and placed under the responsibility of a clearly identifiable entity. The practice of secret detention constitutes a complete repudiation of these principles.

Secret detention can certainly be considered to amount in itself to a form of ill-reatment, both for the person detained and for members of his or her family. Further, the removal of fundamental safeguards which secret detention entails - the lack of judicial control or of any other form of oversight by an external authority (such as the ICRC) and the absence of guarantees such as access to a lawyer - inevitably heightens the risk of resort to ill-treatment. And in the light of the information now in the public domain, there can be little doubt that the interrogation techniques applied in the CIA-run facilities concerned have led to violations of the prohibition of torture and inhuman or degrading treatment.

Labels: , , ,