Miscarriages of Justice in the War Against Terrorism

Abstract

The first part of this paper examines the history of wrongful convictions in terrorism cases with an emphasis on the Irish cases of the Birmingham Six, the Guildford Four, the Maguire Seven and Judith Ward. Various causes of wrongful convictions are examined including police misconduct, false confessions, ethnic stereotyping and lack of disclosure. The second part of the paper argues that miscarriages of justice that result in long term detention of the innocent in the post September 11 environment may be more likely to occur under immigration and military laws that offer far less procedural protections for detainees than the criminal law. Indeterminate detention under British immigration law, security certificates under Canadian immigration law and the rules for determining enemy combatant status under American military law are critically examined with an emphasis on the dangers of detaining the innocent. The third part of the paper concludes that a focus on wrongful criminal convictions is an inadequate approach to the problem of miscarriages of justice in the context of the contemporary war against terrorism. It proposes a definition of miscarriages of justice that stresses the risk of detaining those who are innocent under even the expanded liability rules of immigration and military law.