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Laws Against Terrorism; Savagery of Legal Systems

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Laws Against Terrorism; Savagery of Legal Systems Laws against terrorism; Savagery of legal systems A comparison of anti terrorism laws among major legal systems of world Lori Wigbers PUBLIC ADVOCACY INITIATIVES FOR RIGHTS AND VALUES IN INDIA (PAIRVI) G-30, 1st Floor Lajpatnagar-III, New Delhi Telephone: +91-11-28841266/+91-11-56151897 Email: [email protected] Website: www.pairvi.org Executive Summary Terrorism is a complex and multi-faceted phenomenon; it does not stem from a single causal framework, nor do its proponents belong to a singular group. Attempting to produce an internationally recognized definition, which accounts for all instances and the differing motivations of the terrorists themselves, runs the risk of being over-inclusive. To complicate matters, each nation takes different approaches to distinguish between acts of terror on the part of state and non-state actors, the internal motivators for these actors, the legality and availability of violent instruments, and political, ethnic or religious framework of terrorist events. In light of these structural difficulties, traditional policy responses to incidents of political violence have generally proceeded along two lines: a. To either increase coercive legal measures, which are designed to punish or deter terrorist activity; b. To meet some or all of the dissident demands. This report will suggest a third option for states which are secure in the underlying legitimacy of their position: focus on the criminal element, and treat terrorism like any other law enforcement problem. In this pursuit it may be necessary to impose additional measures of social control, but here the watchword must remain “moderation”. As many political observers have commented: “Both analysis and history tell us that that lack of confidence and over-reaction in the face of terrorist attacks are at least as dangerous as many of the attacks themselves.”1 In The Mini-Manual of the Urban Guerrilla, the Brazilian communist Carlos Marighela explicitly encouraged terrorist groups to mount attacks designed to provoke state authorities into overreaction.2 Marighela theorized that a repressive state response would alienate the government from its population and generate support for the terrorists, and that declining governmental legitimacy would strengthen the terrorist cause. If Marighela’s theory is correct, one would expect to see a correlation between a draconian state response and both the resilience and intensity of terrorist campaigns. With Marighela’s theoretical framework in mind, the following report will examine the experiences of seven democratic states – India, the United States, the United Kingdom, Canada, Israel, Pakistan and Afghanistan – in their approaches to counter-terrorism law, the relative successes and failures of each, and the state of human rights throughout this process. It will demonstrate that democratic states, through their international, foreign and domestic policies of confronting terrorism, have the potential to be, quite literally, their own worst enemies. The report will proceed in the following format: . Section I: Comparison of counter-terrorism strategies in the above-mentioned countries using specific legal mechanisms, such as: a. Legal definition of terrorism; 1 Wardlaw, Grant (1989).Political Terrorism: Theory, Tactics, and Counter-Measures. Second Edition, Cambridge: Cambridge University Press, pp. 186 2 Marighela, Carlos (1970). Minimanual of the Urban Guerrilla. Havana: Tricontinental, pp. 35–36. b. Search and seizure law; c. Arrest procedure; d. Length of pre-charge detention; e. Presence of sunset clauses; f. Bail procedures for terrorist suspects. Section II: Examination of the legal issues within counter-terrorist practice, particularly those with a strong potential for human rights violations. Section III: International civil society opinion of counter-terrorist policy, highlighting specific concerns from each country. Section IV: Current judicial opinion and precedent in the application of counter-terrorist law. Section V: Case studies, highlighting incidents of human rights infringement within the practical application of counter-terrorist policy. Finally, this report will demonstrate that, in the name of countering terrorism, a wide range of laws, policies and practices have eroded human rights protections as governments claim the security of some can only be achieved by violating the rights of others. The voices of human rights defenders, political opposition leaders, journalists, people from minority groups and others have been stifled, or intimidated into silence. Harsh legal responses have undermined the rule of law and violate numerous international treaties; they pose significant challenges to the protection of human rights in numerous countries across the globe. Counter-Terror in the United States of America “The administration of President Bush, in developing its interpretations of U.S. and international law, and the Congress in enacting certain changes to U.S laws sought by the administration, have pursued policy preferences in the “war on terror” with little or no regard or respect for the USA’s international legal obligations. This has led to failure to comply with some of the most fundamental, absolute, and non-derogable rules of international law, such as, the rule that anyone deprived of his or her liberty must be treated with humanity and with respect for the inherent dignity of the human person, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, the prohibition of enforced disappearance, and the prohibition of arbitrary detention.”3 In a world community which has adopted global measures to counter terrorism, the United States is a leader. This position carries with it a special responsibility to also take leadership in the protection of human rights while countering terrorism. Despite the existence of a long tradition within the United States of respect for the rule of law, and the presence of self-correcting mechanisms under the United States Constitution, it is most regretful that a number of important mechanisms for the protection of rights have been removed from both law and practice since the events of 11 September, including under the USA PATRIOT Act of 2001 and the Military Commissions Act of 2006.These two pieces of legislation form the basis of U.S. foreign policy, and are the legal guidelines by which the “War on Terror” is waged. This report will examine each Act at length, and the human rights issues which arise from their enforcement. The USA PATRIOT Act of 2001 Signed into law by George W. Bush on October 26 2001, the USA PATRIOT Act remains the principal piece legislation which determines U.S. counter-terror policy. The Act increases the ability of law enforcement agencies to search telephone, e-mail communications, medical, financial, and other records; eases restrictions on foreign intelligence gathering within the United States; expands the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and enhances the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expands the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the expanded law enforcement powers can be applied.4 Although the Act was supported by members of both the Republican and Democratic parties, it has been criticized for weakening protections of civil liberties, as well as being overboard in regard to its application. In particular, opponents of the law have criticized the authorization of indefinite detentions of immigrants; searches through which law enforcement officers search a home or business without the owner’s or the occupant’s permission or knowledge; and the expanded use of National Security Letters, which allows the FBI to search telephone, e-mail, and financial records without a court order; 3 Amnesty International (2008). USA: Investigation, prosecution, remedy; Accountability for human rights violations in the “War on Terror”. 4 December 2008, AI Index: AMR 51/151/2008 4 USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, Pub. L. No. 109-178, 120 Stat. 278 (9 March 2006). Since its passage, several legal challenges have been brought against the act, and Federal courts have ruled that a number of provisions are unconstitutional.5 The Military Commissions Act of 2006 Drafted in the wake of the Supreme Court’s decision on Hamdan v. Rumsfeld, President Bush signed this Act of Congress into law on October 17, 2006. The Act’s stated purpose was “To authorize trial by military commission for violations of the law of war.”6 It changes pre-existing law by explicitly forbidding the invocation of the Geneva Conventions in the case of any persons captured during hostilities. The Act contains provisions removing access to the courts for any alien detained by the United States government who is determined to be an enemy combatant, or who is “awaiting determination” regarding enemy combatant status. This allows the United States government to detain such aliens indefinitely without prosecuting them in any manner. The MCA has also been criticized for allegedly making it harder to prosecute and convict officers and employees of the US government for misconduct in office. First, the MCA has changed the definition of war crimes for which U.S. government defendants can be prosecuted. Under previous law, any
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