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UNIVERSITY OF CINCINNATI DATE: November 10, 2003 I, Craig T. Cobane II , hereby submit this as part of the requirements for the degree of: Doctorate of Philosophy in: Political Science It is entitled: Terrorism and Democracy The Balance Between Freedom and Order: The British Experience Approved by: Richard Harknett James Stever Thomas Moore Terrorism and Democracy The Balance Between Freedom and Order: The British Experience A dissertation submitted to the Division of Research and Advanced Studies of the University of Cincinnati in partial fulfillment of the requirements for the degree of DOCTORATE OF PHILOSOPHY (Ph.D.) in the Department of Political Science of the College of Arts and Sciences 2003 by Craig T. Cobane II B.S., University of Wisconsin-Green Bay 1990 M.A., University of Cincinnati 1992 Committee Chair: Richard J. Harknett, Ph.D. Abstract The British Government has been engaged for more than thirty years in a struggle with terrorism related to Northern Ireland. During what is euphemistically called the Troubles, the British government has implemented a series of special emergency laws to address the violence. Drawing upon the political context and debate surrounding the implementation and development of the emergency legislation this research examines the overall effect of British anti-terrorism legislation on both respect for civil liberties and the government’s ability to fight campaigns of violence. Drawing heavily upon primary sources, high profile cases of miscarriages of justice and accusation of an official ‘shoot to kill’ policy this project explores three distinct areas related to a government’s balancing of the exigencies of individual liberty and societal order. First, accusations of an erosion of civil liberties are examined in relation to the war on terrorism. Second, it is argued three decades of special emergency legislation has led to the normalization of policies used to fight terrorism. Third, the powers created to deal with a unique crisis situation have expanded dramatically in scope and have continued to do so even as violence associated with the Troubles diminishes. The research concludes by exploring the project’s findings and what the lessons the British experience may have for other liberal democracies dealing with sustained campaigns of violence. Acknowledgments I would like to start out by thanking my mother and father for all their love, support and encouragement throughout my life. Truly without the two of them this project would never have been started or finished. I dedicate this project to both of them. It is customary to acknowledge the faculty who played a role in the completion of one’s dissertation. I would like to express a deep debt of gratitude to my first advisor Abraham H. Miller who not only open many doors for me and sparked an interest in the study of political violence, but taught me a great deal about the world of academics. I would also like to give my thanks to the faculty who served on my dissertation committee: Thomas Moore and James Stever. Most importantly, I would like to thank my committee chair Richard J. Harknett who was more than an outstanding mentor, but a friend and colleague. Richard demonstrated every day that a faculty member is both an educator and a scholar. All of their support and guidance were monumental in the completion of this project. I am deeply indebted to the many friends, colleagues and students who read endless drafts, provided moral support and put up with the emotional roller coaster which accompanies the dissertation process. Especially important has been the loving support of my fiancée Kate D. Sharkey who has sacrificed much and put up with more as I finished this project over the past year. I would like to thank Nicholas A. Damask not only for his excellent comments on various drafts of numerous chapters, but more importantly for his friendship. Additional individuals who read parts of the dissertation or assisted in its completion in one manner or another include: Laura Ament, Rebekah Davission, Sarah Harrison, Velvet Hasner, Sarah Holst, Peggy Lisa Jones, John Moser and Deanne Whiston. I would like to thank the library staff at the University of Cincinnati for their efforts to order numerous British documents in the early stages of my research. I would also like to thank Elaine Hawkley, librarian for the Institute for Humane Studies for her efforts while I was an IHS summer fellow. Finally, I am forever indebted to Renee Gorrell, librarian at Culver-Stockton College for her professional friendship, Herculean efforts in securing various books and editing each chapter. I would like to thank the Institute for Humane Studies for their generous funding during a summer fellowship. The summer with IHS in Fairfax, Virginia not only provided me the time to write chapter three, but allowed me to interact with a fantastic group of diverse scholars. Finally, I want to thank David Wilson and Edwin Strong for allowing me course flexibility and committee assignment reduction to complete the last chapters while at Culver-Stockton College. Although I owe a debt of gratitude to many, I am solely responsible for the flaws and conclusions found in this research. Table of Contents Abstract Acknowledgements List of Abbreviations Chapter I - Terrorism and Democracy: The Balance Between Freedom and Order I Introduction 1 II Objective of Study 3 III Importance of Studying Terrorism and Democracy 10 IV Methodology 11 V Brief Introduction to the Paramilitaries 12 A. Catholics 13 B. Protestants 19 VI Key Concepts 24 A. Terrorism 25 B. Liberty 26 C. Liberal Democracy 29 D. Rule of Law 30 E. Use of Force 31 F. Policy Approaches 33 VII Organization of Study 34 VIII Chapter Summary 35 Chapter II - Competing Views of the “Troubles” I Introduction 36 II Terrorism and Democracy 37 A. Danger of Overreaction 38 B. Maintaining the Essence of Liberal Democratic Values 40 C. Democracy, Terrorism and Northern Ireland: Literature on the British Case 42 D. Freedom versus Order: An Insurmountable Dilemma? 43 1. Elements of Freedom 45 E. Section Summary 48 III Terrorism and Northern Ireland: The British Response 49 IV The British Response and Civil Liberties 54 A. Diplock Courts 60 1. Non-Jury Courts 61 2. Supergrasses 64 B. Arrest and Search Powers 68 C. Proscription 73 D. Miscarriages of Justice 77 E. Interrogation in Depth: The “Five Techniques” 79 V Chapter Summary 82 i Chapter Three - Terrorism in Great Britain and the Government’s Response I. Introduction 86 II. History of the Violence 87 III. Civil Rights Movement 89 A. Public Demonstrations: A New Phase in the Civil Rights Movement 91 IV. 1969 The Troubles Continue: British Intervention 96 V. Reform and Repression: September 1969 to Internment 100 VI. Direct Rule 105 VII. Diplock and the NI(EP)A 1973 107 A. Gardiner Review of NI(EP)A 1973 111 B. NI(EP)A 1978 113 C. Baker Review 115 D. NI(EP)A 1991 117 VIII. Path to the PTA 120 IX. PTA 1976 124 A. Jellicoe Report 126 X. The 1984 Act and the Colville Review 130 XI. The 1989 Version of the PTA 133 XII. Lloyd Report 1996 137 XIII. Terrorism Act 2000 142 XIV. Chapter Summary 146 Chapter Four - Reaction of the Civil Liberties Community I. Introduction: Origins of the Civil Liberties Perspective 148 II. Proscription 149 A. Cosmetic Justification: “More Spectacular than Effective” 150 B. Freedom of Speech and Association 151 C. Making Law Enforcement Tougher 152 D. Anti-Proscription Summary 153 III. Exclusion Orders 153 A. Internal Exile 155 B. Questionable Information With No Right to Question It 155 C. No Due Process 157 D. The Creation of Devil Island In Ulster 158 E. Exclusion Summary 159 IV. Arrest and Detention powers 160 A. Arrest Powers Under Legislation 160 1. Legalized Intelligence Gathering 162 2. The Normalization of the Extraordinary 163 3. Increased Intelligence, But Losing the War for the Hearts and Minds 164 4. Arrest Powers: A Summary 164 B. Detention Powers Under Emergency Legislation 165 V. Diplock Courts 168 A. “Good Enough for Northern Ireland” 169 ii B. Scheduled Offenses: Here Today … There Tomorrow 169 C. Trial by Jury: The Lamp that Shows that Freedom Lives 171 D. Changing Rules of Evidence 172 E. Admissibility of Confessions and How You Get Them 173 F. Summary 174 VI. Supergrasses 174 A. Reliability of Testimony Concerns 176 1. Witness Testimony 176 2. Motivation of Supergrass Testimony 177 3. Creating a Supergrass: Possible Police Recruitment 178 B. Increased Possibility of Convicting the Innocent 179 C. Public Loss of Confidence in the Judicial System 180 VII. Terrorism and the Media: Capping the Lens 182 VIII. Conclusions 186 Chapter Five - Government Aspirations and the Implementation of Emergency Legislation I. Introduction 188 II. Proscription 191 III. Exclusion Orders 194 A. Preventing Terrorism in Great Britain 195 B. Avoids Judicial Technicalities 196 IV. Arrest and Detention Powers 199 A. Arrest Powers Under Emergency Legislation 199 1. Bringing Terrorists to Trial 201 2. Gathering Information and Checking Police Records 203 B. Detention Powers Under Emergency Legislation 203 V. Diplock Courts 206 VI. Supergrasses System 211 VII. The Administrative Broadcast Ban of 1988 214 VIII. Conclusions 224 Chapter Six - Examination of Recent Test Cases I. Introduction 227 II. Miscarriages of Justice and Government Response 228 A. Guildford Four 228 1. Paul Hill 229 2. Gerry Conlon 230 3. Carole Richardson 232 4. Trials and Conviction 233 5. Summary 245 B. Maguire Seven 245 1. The Arrest 245 2. The Interrogation 248 3. The Trial 251 iii C. Birmingham Six 255 1. The Trial 260 D. Appeals and Convictions Overturned 264 1. Maguire Seven 264 2. Guildford Four 266 3. Birmingham Six 268 E. Convictions Quashed 271 III.