The Treatment of Foreign Terror Suspects
| Date | 01 May 2007 |
| Author | Clive Walker |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00645.x |
| Published date | 01 May 2007 |
TheTreatment of ForeignTerror Suspects
CliveWalker
n
Following the bombings in London of July 2005,the Prime Minister,TonyBlair warned that‘the
rules of the game are changing’.The proposed changes have primarily related to foreignsuspects
of terrorism and engage rules relating to asylum, deportationandnationality. TheTerrorismAct
2006 and the Immigration, Asylum and NationalityAct 2006, whichgive e¡ect to the proposals,
are examined and analysed with reference to the policy choices in regard to counter-terrorism
strategy, to the weighting of rights against policy, and tochoices between rights, including the
treatment of absolute rights.
UNWELCOME GUESTS
The bombings in London of 7 July 2005 killed or injured dozens of people.
Theseattacks rightly gave pause for o⁄cial re£ection upon anti-terrorism laws,
asylum policies and transport security.
1
In contrast to prior crises which resulted
in legislation within short order,
2
there was no panic response. After all, already
forearmed with most conceivable varieties of powers under theTerrorism Act
2000, the Anti-terrorism, Crime and SecurityAct 2001 and the Prevention of
Terrorism Act 2005, anincreasingly ‘militant democracy’ was emerging
3
with
no manifest legal gaps. However, thePrime Minister,Tony Blair, issued a stark
warning on 5 August 2005 of future amendments: ‘Let no one be in any doubt,
the rules of the game are changing.’
4
That statement may be questioned in several respects. Onem ight deprecate the
implication that solemn legal process determining vital individual rights and
societal interests should beviewed as no moresacrosanct than a‘game’. Onemight
also comment on theagenda highlighted for reform ^ in other words, the
diminution of individual rights rather than possible intelligenceand administra-
tive failings. A subsequent refusal to allowany form of inquiry into the latter
beyondtheproduction of a‘narrative’con¢rms the o⁄cial determination to man-
age the policy agenda.
5
Nevertheless, the ensuing months witnessed the delivery
n
Centre for Criminal Justice Studies, School of Law, University of Leeds. The author thanks the
School of Law, StanfordUniversity,for study facilities during a visiting professorship in January 2006.
1On the latter, see House of CommonsTransport Committee, UK Transport Security (2005^06
HC 637).
2For the tendency towards ‘panic’ legislation, see J. H. Marks,‘9/11+3/11+7/7=? What Counts in
Counterterrorism?’ (2006) 37 Columbia Human Rights L Rev 559; E. A. Posner and A. Ver-
meule,‘Emergencies and Democratic Failure’ (2006) 92VirginiaLRev 1091.
3SeeA.Sajo
¤(ed),Milita nt Democracy (Amsterdam:Eleven International Publishing, 2004).
4TheTimes6 August 2005,1.
5Reportof the O⁄cialAccount of the Bombingsin London on the 7thJuly2005 (2005^06 HC 1087). See also
Intelligence and Security Committee, Reporton the LondonTerrorist Attackson 7 July 2005 (Cm 6785,
London, 2005). A review of the capacity and resources of the security services has also been
ordered:The Guardian, 29 September 2006, 1.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(3)MLR 427^457
ofsomestartlingchanges, especiallythrough the Terrorism Act2006. The Act
provides for newo¡ences relating to speech which might be construed as
encouraging terrorism, other broad o¡ences concerning preparatory measures
and training, wider grounds for the proscription of organisations, and the exten-
sion of detention withouttrial upon arrest from14 days to 28 days
6
(but not to 90
days, as originally sought).
7
One prominent aspect of the‘game’ being playedwith terrorism concerns the
treatment of foreign terrorist suspects, as a result of which the Immigration, Asy-
lum and NationalityAct2006 also delivereda signi¢cant aspect of the response. In
a sense, it is almostperverse that the spotlight should focus upon foreigners.What
was so remarkable about the London bombings of the 7 July 2005 was that they
were perpetrated by British citizens.They wereYorkshiremen, whose mundane
backgrounds set at naught several of the tactics of the security forces on the hunt
for cells of foreigners.Whilst the Home O⁄ce,
8
the Foreign O⁄ce,
9
and later the
Department of Communities and Local Government
10
have subsequentlyshown
concern for the attitudes of minority communities towards terrorism, much of
the legislative attention has steadfastly remained focused upon foreigners. This
paper will examine the policy choices and responses which have ensued, with
reference to the design of counter-terrorism strategy, to the weighting of rights
against policy, and to choices between rights, including the treatment of absolute
rights.
POSSIBLE APPROACHES TO FOREIGN SUSPECTS OF TERRORISM
The United Kingdom government has been struggling for years to ¢nd a satis-
factory response to foreign terrorist suspects, a problemwhich may be viewed as
an acute aspectofthe widerproblems causedby populationmovementsand espe-
cially by asylum claims.
11
At least four responses are conceivable.
6The period had been increased from seven daysby the Criminal Justice Act 2003, s 306, in the
light of the di⁄culties posed by foreign terrorism.
7See TerrorismBil l 2005^06 HC no 55 cl 23.Even the 28 day period is viewed as disproportionate
by the JointCommittee on Human Rights, Counter-TerrorismPolicyand Human Rights:TerrorismBill
and relatedmatters (2005^06 HL75,HC 561) para92.
8Several studies were undertakenby working groups underthebanner of‘Preventing Extremism
Together’ (London: HomeO⁄ce, 2005), including: the creationof a National Advisory Council
on Mosques and Imams; regional Forums Against Islamophobia and Extremism;‘Preventing
ExtremismTogether’(PET) Scholars’Roadshows.Other i nitiativesinclude a Home O⁄ce ‘Faith
Communities Capacity Building Fund’and the training and accreditation of imams:HC Deb vol
440 col 167ws15 December2005, CharlesClarke.
9Measures include: grant aid to Pakistan for education purposes (The Independent on Sunday 19
November2006, 46); andwork by the Islamic MediaTeam and bythe Engaging with the Islamic
World Group (see Home O⁄ce,CounteringInternationalTerrorism Cm 6888 (London: Home O⁄ce,
2006) para 49).
10 See its Commission on Integration and Cohesion: http://www.communities.gov.uk/index.
asp?id=1501520(last vis ited 4 January20 07).
11S ee H ome O⁄ ce, SecureBorders, SaveHavens Cm 5387(London: Home O⁄ce, 2002).Compare Att
Gen vZaoudi [2005]1 NZLR 577 at[115].
TheTreatment of ForeignTerror Suspects
428 r2007 The Author.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(3)MLR 427^457
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