9 Journal of National Security Law (2018 Forthcoming)
54 Pages Posted: 17 Aug 2018
Date Written: August 10, 2018
Legal analysis of the now much maligned “war on terror” has been a growth industry in the United States, the United Kingdom, and elsewhere since the events of September 11, 2001. A substantial literature spanning multiple legal systems has emerged to address its scope, nomenclature and consequences. How best to respond to and regulate terrorism remains a contested debate intellectually and practically. Yet despite the contestation and the vast literature on regulating terrorism, scholarship and analysis are regularly based on supposition rather than empirical knowledge or testing.
This article seeks to close that analytical gap. Security argumentation based on supposition raises important questions as to whether the underpinning assertions in the national security sphere are normatively justifiable. Recognition of empirical lacunae tends to highlight other gaps—specifically that claims about the effectiveness of particular exceptional powers also tend to rely upon normative assertions that they “ought to work,” unsupported by verifiable data. Data gaps abound in national security debates, and in legal contestation about whether anti-terrorism regulation is effective or necessary.
This article dives into that empirical gap by providing unique data on the operation of detention, arrest, and trial regimes created to counter and manage terrorism in the United Kingdom. While the data is specific to the regulation of terrorism in the United Kingdom, we claim that our analysis is useful and applicable to the regulation of terrorism by other democratic states, including the United States. Our contemporary data set is compatible with multiple empirical studies carried out on terrorism trials in Northern Ireland since 1975 giving us the capacity to provide a 40-year perspective on arrest, detention, interrogation and trial in terrorism related cases in the United Kingdom. Theoretically we develop new thinking on; the relationship between norm and exception in democracies using emergency and terrorism powers for extended periods challenging scholarly and policy claims of a one way and highly static relationship between these phenomena in situations of crisis; the unexpected role of the courts in revealing and regulating the ‘secret’ state in democracies; the ways in which law plays a dampening role on exceptional powers in democracies; and role of legal institutions in addition to the effect of legal culture on a state’s resort to exceptional powers. Empirically, the data reveals new and unexpected information about interrogation, arrest and trial. In particular, we learn unexpected new information about the profile of terrorism detainees in long-term protracted conflicts (relevant to issues of profiling, managing and preventing terrorism); we gain new insights into the ways in which interrogations progress (in particular when defendants confess with noteworthy implications for the access to legal representation); the critical effect that access to lawyers has on the interrogation and detention experience; we understand better how changes to the legal system pressed by human rights advocates and bi-lateral international pressure points alter the substance of terrorism trials with significant outcomes for the fairness of trial over time. The data presented has real-world implications for lawyers, policy-makers, and those reflecting on the ways in which democracies harness law and the courts to manage terrorism.
Keywords: Terrorism, Interrogation, Fair Trial, Military Commissions, Evidence, Radicalisation, Open State, Secret State, Democracy, Torture
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