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Abstract: The detention of terrorist suspects by the United States at various locations around the world, most notably Guantanamo Bay Naval Base, is one of the most obvious results of the war on terror. The detention of terrorist suspects at Guantanamo is an example of detention outside the criminal justice paradigm. The United States, however, is not alone in doing this. This article examines the different approaches taken by the United States, the United Kingdom, Canada and New Zealand in relation to the detention of terrorist suspects. Whereas the United States detains terrorist suspects using a detention model that selectively utilises law of war concepts, the other jurisdictions surveyed employ a model based on immigration law. Both models permit detention with fewer due process protections. Both models have, in practice, also resulted in the differential treatment of foreign terrorist suspects. The article concludes by discussing how the courts in each jurisdiction have dealt with the cases concerning the detention of terrorist suspects.
Terrorism, National Security, Terrorist suspects, Guantanamo, Detention, Comparative law
Abstract: This article is about two different narratives or accounts of torture. Each narrative signifies a certain view about the legality and wisdom of employing torture and coercion in interrogation. Since the terrorist attacks of September 11, 2001, the use of torture and coercion has become a topic of genuine debate, despite a sizable corpus of domestic and international law prohibiting those very practices.
The first narrative of torture is centered on the ticking bomb scenario, the hypothetical that has frequently been deployed in the academic arena to overcome the absolutist nature of the legal prohibition on torture. Since 9/11, the ticking bomb scenario has also appeared in various official government documents and statements that assert the legality of torture and coercive interrogation techniques. It has also been replicated in popular culture, the most notable example being Fox's counterterrorism drama, 24.
A second narrative of torture challenges the validity and usefulness of the ticking bomb scenario. Various academic commentators have unpacked the assumptions underlying the scenario. Certain government actors, most notably the Federal Bureau of Investigation and military lawyers, have consistently rejected the logic of the ticking bomb scenario, and opposed the use of torture and coercion in interrogation. This second narrative also has a popular culture representative in the form of Sci-Fi Channel's Battlestar Galactica. Thus, the same battles that have been fought over the treatment of detainees in the "war on terror" in the legal and political arenas by real world actors since 9/11 are also being fought at a discursive level in popular culture.
terrorism, national security, torture, interrogation, ticking bomb scenario, popular culture, narrative, Battlestar Galactica, 24
Abstract: The period since the terrorist attacks of September 11, 2001 has witnessed the implementation of aggressive counterterrorism measures around much of the Western world. This is exemplified by the two jurisdictions with which this paper is concerned: the United States and the United Kingdom. Since 9/11, both states have, for example, detained terrorist suspects indefinitely without trial, and created a plethora of new counterterrorism laws. These measures raise questions about the appropriate boundaries of state power and have serious implications for individual liberty. As affected individuals have sought to challenge the legality of their treatment, the United States Supreme Court and the House of Lords, the highest courts in their respective jurisdictions, have been forced to grapple with these difficult issues.
This paper is an attempt to situate the major decisions of the Supreme Court and the House of Lords concerning aspects of the war on terror in the historical context of judicial behaviour in times of war. The conventional account of judicial behaviour during such times posits that courts are ineffective guarantors of individual liberty because they inevitably defer to executive claims of national security. Only after the period of war has passed do the courts re-assert themselves, resulting in a cyclical pattern of contraction and expansion of liberty.
How do the relevant post-9/11 decisions of the Supreme Court and House of Lords fit within this pattern, if at all? This paper considers five possible ways of understanding the relevant decisions in light of the conventional account of judicial behaviour described above. First, the conventional account may simply be incorrect or incomplete. Second, the decisions of the Supreme Court and House of Lords post-9/11 may represent a break in the historical pattern of judicial deference in times of war. The three other explanations are consistent with the conventional account. First, these cases may be sufficiently remote in time from the relevant events such that courts feel confident in reasserting their authority. Second, the courts may view the current war on terror as being in some way qualitatively different from traditional war. The final explanation is that the relevant post-9/11 decisions may have had less impact than first thought, and as such, ultimately represent a form of disguised deference consistent with the conventional account of judicial behaviour in times of war.
Terrorism, National Security, Comparative law, Terrorist suspects, Guantanamo, Detention
Abstract: This paper considers the stopping and searching of people on a suspicionless basis for the purpose of interdicting terrorist activity. Such stops and searches are an example of “all risks” policing, which focuses on threats and vulnerabilities: everyone is considered a potential risk. All risks policing is a reaction to a situation where traditional markers such as nationality and citizenship are no longer reliable indicators of potential threat, as the involvement of citizens and long-term residents in recent terrorist attacks and plots in the United States and United Kingdom would demonstrate.
The discussion is based around two cases. The first, MacWade v Kelly, concerned a challenge to suspicionless searches of subway passengers under the New York City Police Department’s Container Inspection Program. The second, R(Gillan) v Commissioner of Police for the Metropolis, concerned a challenge to an exceptional suspicionless search power under British counterterrorism legislation.
The paper first outlines these two cases and their respective legal context. It then discusses several issues that arise out of the two cases. The first is how people are selected for the extra scrutiny. The second is the tendency for concerns about the risk of terrorism and the need to prevent terrorist acts to overwhelm any countervailing concerns. The third is the problem of normalization.
Terrorism, Prevention of Terrorism, Stop and search, Search and seizure, National Security, Comparative law
Abstract: This article critically examines the special advocate procedure, a means devised to reconcile the use of secret evidence with principles of due process or natural justice. The special advocate is a lawyer who is appointed to represent the interests of a person during proceedings in which the state relies on sensitive material that cannot be disclosed to that person.
The article traces the origins of the idea of the special advocate procedure, its establishment in the United Kingdom, and its eventual spread to Canada and New Zealand. It then considers: (1) whether special advocates can be effective in ensuring fairness, given the constraints under which they operate; and (2) whether other issues related to their increased use militate against wider adoption.
terrorism, national security, special advocate, secret evidence, classified information
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