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Article 9: Freedom from arbitrary arrest


Case Study: ANTI-TERRORIST LEGISLATION POST SEPT. 11
  • The nature of national security has changed in the aftermath of the September 11 terror attacks in the United States.
  • The US and the UK have implemented emergency measures to combat terrorism.
  • In October 2001, the US Congress approved anti-terrorism legislation, known as the Patriot Act, which provides law enforcement agencies with increased powers to monitor and detain suspected terrorists without charge or trial.
  • In December 2001, the UK Parliament approved the Anti-Terrorism, Crime and Security Act, which allows for the detention without trial of foreigners suspected of terrorism.

Context

In the wake of the terror attacks in New York City on September 11, 2001, governments worldwide have been pressing for broader powers of investigation and detention.

In particular, the US and UK governments have asserted that broad new anti-terrorist legislation is necessary to deal with the changing nature of national security.

Human rights groups have argued that civil liberties are now at risk.

US Measures

As the site of the terror attacks which killed nearly 3,000 civilians, the US was one of the first countries to pass anti-terrorist legislation.

The so-called 'Patriot Act' was passed in late October 2001 and is aimed at preventing further terror attacks.

The Act gives broad new powers to police forces and intelligence agencies, which are now able to observe and monitor the communications of suspected terrorists more easily. It also allows for the tapping of phones of suspected terrorists and nationwide search warrants for computer information.

In addition, foreign terror suspects can now be held up to seven days before being charged or deported.

Civil liberties groups have expressed concerns at provisions concerning military tribunals, wiretapping and detentions.

Court cases involving the infringement of civil rights after September 11 have reached some of the highest courts in the country.

Civil liberty groups won a landmark lawsuit against the government in August 2002 regarding the disclosure of the names of an estimated 1,200 individuals who have been detained on both immigration violations and as material witnesses to the terror attacks.

The suspects have been held without charge and identification. The ruling does not cover the 600 detainees at Guantanamo Bay, however (see Article 10), and the government is not required to specify the location of the detainees.

Meanwhile the legality of holding prisoners without trial at Guantanamo is currently under review, with the US Supreme Court having ruled that those held can challenge their detention. As a result, detainees are starting to have their cases re-examined by a military tribunal.

UK Legislation

After much debate, the UK Parliament passed the Anti-terrorism, Crime and Security Act in December 2001.

The Act was intended to make it easier for law enforcement agencies to track terrorist funds and share information.

Most controversially, the Act grants the home secretary the power to detain suspected international terrorists without trial if deportation is not possible because it would endanger the suspects’ lives.

Since this provision violates Article 5 of the Human Rights Act, the home secretary had to assert that the UK is in a 'state of public emergency.' Article 5 guarantees the right to liberty and grants protection against detention without charge of trial.

In addition, communications companies will now have the power to retain information on calls and emails made by their customers, though they will not be able to retain their contents.

Liberty, a human rights group, legally challenged Britain's anti-terror laws in July 2002, claiming they breach human rights. Amnesty International has similarly asserted that the new laws breach fundamental human rights.

In total, 17 men have been arrested and held without trial in the UK under the new laws. Of these, 11 are still being detained.

Most are being held at Belmarsh Prison in London, which some human rights groups have termed “Britain’s Guantanamo Bay.”

Home Secretary David Blunkett has admitted that the situation is not ideal, but argues that it is necessary and “the best and most workable way to address the particular problems we face.” But in August, Parliament’s Joint Committee on Human Rights called for an alternative to be found to the Anti-terrorism, Crime and Security Act’s internment powers, and said suspected terrorists should be charged and face trial rather than left in legal limbo.

However, just two detainees have so far successfully challenged their detention, with three Appeal Court judges deciding in August the government was legally entitled to hold 10 other men who appealed. Solicitors are currently attempting to overturn this decision in the House Of Lords.