March 2005 Vol 5, No. 3
Britain’s Terrorism Bill
By Brian Shannon
Initially it seemed to be a victory. Last December the highest court in Great Britain, a special nine-member committee of the House of Lords called the Law Lords, ruled by an 8 to 1 vote that the Anti-Terrorism, Crime & Security Act (ATCSA) of 2001 was illegal and in violation of the basic civil liberties laws of the United Kingdom and the European Union. The ATCSA allowed the arrest and indefinite detention of suspected foreign terrorists without trial and without any knowledge of the charges against them or the facts upon which they were based.
The result of the Law Lords’ ruling is that the ATCSA will expire on March 14 unless it is officially extended. Unlike the U.S. Supreme Court whose rulings have the effect of law, the rulings of the Law Lords has high moral weight, but no direct legal effect. The law can be extended despite the Law Lords’ ruling.
Instead of getting rid of the law altogether, Tony Blair’s Labor Government is rushing through a new “Prevention of Terrorism Bill” that would extend detention without trial for accused foreign terrorists to all British residents that the government accuses of aid to terrorism.
The ATCSA had made a distinction between British citizens and foreigners. It was this distinction that the Law Lords found most invidious. It pointed out that the only reason for the distinction was that it would be illegal to similarly violate the rights of British citizens. The new law would fix that; i.e., it would take civil liberties away from British subjects as well as foreigners.
At the same time it ruled that such violations would contravene both British law and the laws of the European Union. It would seem that the new Anti-terrorism law would face similar objections. However, it took 3 years for the ATCSA to be adjudicated. It could be followed by another law...and so on.
The proposed law is not solely Tony Blair’s law. Blair said he was acting on the “unanimous” advice of the security services and police chiefs, who said the orders were “necessary to disrupt the planning of terrorist activity in this country.” In other words, it is the military and police forces of the United Kingdom who are using the fight against terrorism to destroy historic civil liberties and rights of the British people that go back for 700 years.
This would amount to a fundamental change in the civil liberties laws of the United Kingdom. Considering the UK’s position as the origin of the Common Law, which is the basis for law throughout the English-speaking world and the UK’s former colonies, such a change would have a profound affect on civil liberties standards throughout the world.
The only difference between the 2001 ATCSA and the new Prevention of Terrorism Bill is that it would subject UK residents to “control orders,” including “house arrest.” instead of prison.
However, these “control orders” are not clearly defined. House arrest itself could amount to turning your own residence into a virtual prison. Nor do we know what would happen if by chance or intent one or more of the “control orders” were violated. Apparently it is similar to violation of parole in the United States. The difference, however, is that the U.S. violation of parole applies to crimes that have already been tried in a court of law. Violation of a “control order” could result in a long prison term for no crime whatsoever.
All of this, of course, assumes complete honesty and fairness by all the members of the police forces themselves.
How might this work in the United States?
Let’s suppose your student organization pays for a speaker who is a member of an organization that wants to establish an independent Black republic in the United States and further suppose that you have paid him or her an honorarium. If the government charges that you have given money to a terrorist or a terrorist organization, how can you defend yourself, especially if your organization has progressive or radical aims itself?
In the 1960s, the Militant Labor forums of the U.S. Socialist Workers Party paid honorariums to Malcolm X and possibly to Eldridge Cleaver of the Black Panther Party and Herman Ferguson of the Republic of New Africa.
One can easily imagine the U.S. government declaring that individuals and organizations that paid such honorariums to such individuals were guilty of supporting terrorism. Of course, the particular charges themselves and the evidence for such charges would be kept secret from those accused. The public could easily imagine that your activity went beyond holding a forum.
Suppose you want to aid the five imprisoned Cubans held in U.S. jails, whose only activity was trying to prevent terrorism against their own government. Are you funding and aiding “terrorism” by your association? The U.S. government might say so.
Again, suppose that the “control order” allowed you to leave your house but forbid you from engaging in illegal activity. You attend a demonstration that is declared an illegal assembly by the police. You try to leave but are arrested. Now you have violated your “control order” and can be thrown in jail. No trial, no witnesses—from beginning to end.
Or the “control order” forbids you from associating with those who aid terrorism. However, unknown to you, your sister or brother helps fund the families whose relatives have been fighting against their repressive governments. Can you associate with him or her? Such association can be the basis for the control order itself, or can be the basis for charging you with violating the control order.
In 1950, the U.S. Congress passed the McCarran-Humphrey Internal Security Act, which provided for establishing concentration camps for subversives. A secret list of potential detainees was to be drawn up by the government, i.e., by the J. Edgar Hoover-led FBI.
Today we have the secret “no fly list” of individuals who cannot leave the country if they are U.S. citizens or cannot enter the country if they are foreign citizens. Last September a flight from England to Maine was diverted 600 miles. Yusuf Islam, the “Peace Train” rock musician, Cat Stevens, was on the flight. He was sent back to England.
“Yusuf Islam has been placed on government watch lists because of concerns of ties he may have to potential terrorist-related activities” said Homeland Security spokesman Brian Roehrkasse. Homeland Security Director Tom Ridge added: “Celebrity or unknown, our job is to act on information that others have given us. And in this instance, there was some relationship between the name and the terrorists’ activity with this individual’s name being on that no-fly list, and appropriate action was taken.” (Emphasis added)
Tony Blair has the votes to pass the Prevention of Terrorism Bill. In the House of Commons, most of the votes against the proposed law came from the Conservative and Liberal Democrats parties. Ironically, it is the appointed and unelected House of Lords that is conducting the strongest opposition to the new law. However, even if Blair accedes to the House of Lords’ criticism, there would only be two changes.
First, the new law would have a sunset clause meaning that it would expire in November, at which time it could be up for debate again.
The importance of the “sunset clause” is that this law, like the U.S. Patriot Act and the first British Anti-terrorism bill, is being rushed through Parliament. Because of the automatic expiration of the ATSCA on March 14 (it can, however, be extended), only two weeks has been available for debate. The “sunset clause” provision would allow time for opponents to rally national opposition, which is already running heavily against the proposed law.
In an attempt to diffuse the issue, Blair promises an annual review. Such a review would sidestep the public debate, concentrating only on how the law had been working in the interim. Arbitrary arrests and detentions could continue. Movements for rights and justice including the freedom of association and assembly could be crippled until the “annual review.”
Such a “review” would not have the psychological or political weight of abrogation of the law. The government would simply be able to say: “See, it’s working okay, so far. No problem!”
Second, instead of a judge having to accept any “reasonable” suspicion on the part of the police forces, he or she would have to make a judgment that on the “balance of probabilities” there was sufficient showing that the accused was aiding terrorism.
Police forces don’t want anyone to have the right to question their judgment and impose their own judgment based on the “balance of probabilities.” Under the Blair law, the only query for the judge would be whether there was some “reasonable” belief that the accused may be dangerous.
The lowest level of proof under the British system and our own is that the police belief was not “unreasonable.” This is what Blair wants. The proof in civil law is that the “balance of probabilities” is that the charge is true. While, as most of us are aware, in criminal cases, a charge is supposed to be proved “beyond a reasonable doubt.”
In any case, the whole proceeding is hidden. The accused and the accused’s attorney have no rights to examine the evidence, confront witnesses, or argue for his or her position. In practice, the difference between “reasonable” and “balance of probabilities” may be minor. Consider that in a time of crisis, even “beyond a reasonable doubt” could convict thousands of innocent prisoners.
Remember the New York City “Wilding Case” of 1989? Five young men were convicted of rape and assault on a young woman in Central Park. They may have been guilty of minor assaults against some citizens, but they had nothing to do with the attack on the young woman. A maniacal blood lust was raised by the media and individuals, including the notorious Donald Trump, who spent thousands of dollars calling for their conviction and passage of a death penalty bill in New York State.
The young men’s civil liberties were grossly violated. Confessions were forced out of them. Soon after, all five recanted, claiming they were tricked and coerced by the police. But few people listened. No physical evidence linked the boys to the scene. All five were convicted as rapists and sent to prison.
Years later, another man “got religion” and confessed to the crime. His DNA proved that he was the guilty person and the youths were innocent. Remember, this was a trial where “beyond a reasonable doubt” was the standard.
The “Founders” on the right of habeas corpus
Alexander Hamilton quoted famed British jurist Blackstone on habeas corpus in The Federalist, No 84 as follows: “To bereave a man of life or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.... [T]he [habeas corpus act is the] bulwark of the British constitution.”
Hamilton’s great rival Thomas Jefferson wrote in 1798 and 1801: “The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume…. Freedom of the person under the protection of the habeas corpus I deem [one of the] essential principles of our government. “The new law will take this away from the British people.
In my opinion, this goes well beyond the U.S. Patriot Act. It should also be looked at in view of the close historical relationship between United States and Great Britain. Along with Canada, Australia, New Zealand and other nations, we share a common heritage of civil rights and civil liberties. The acceptance of this law in Great Britain, imposed by a Labor Party, no less, could be the opening of similar restrictions throughout the world.