Securing Liberty in an Age of Terrorism: The Role of Courts in the United States and the United Kingdom
di Michael C. Tolley(1)

INTRODUCTION
Five years ago, after having received warnings that terrorists were interested in striking American symbols, National Park Service officials erected concrete barriers and metal fences around the Jefferson Memorial in Washington, D.C.  The plan was to restrict public access to one gate thereby making it easier to protect the beloved memorial from damage by terrorist attack.  The irony is that this memorial was opened in 1943 during the darkest days of World War II, and at the dedication ceremony President Roosevelt called it “a shrine to freedom [dedicated today] in the midst of a great war for freedom.”          
Both the “shrine to freedom” and freedom itself are being threatened by the government’s new antiterrorism measures.  Though most Americans will not experience first hand any restrictions on their freedom, for some, including more than 1,200 individuals(2) who were rounded up and detained soon after the 9/11 attacks and almost 60 individuals who have been detained in terrorism investigations under the federal material witness statute,(3) the restrictions are as real as the concrete barriers and metal fences around America’s “shrine to freedom.” The general public’s complacency toward the new security measures has not been all that different from the reaction to the new barricades at the Jefferson Memorial.  Sadly, the symbol of the Jefferson Memorial as America’s “shrine to freedom” is beginning to lose its meaning in the government’s war on terror.
Of all the new security measures adopted after the 9/11 terrorist attacks against the United States and the 3/11 attacks against Spain, none has been as controversial as the policy of imprisoning suspected terrorists, both citizens and foreign aliens, without
charge or trial.  In the United Kingdom, sixteen foreign nationals believed to be associated with Islamic terrorist organizations have been imprisoned under antiterrorism legislation at Belmarsh and Woodhill.  The same had been true in the United States, but the numbers have been much higher.  In the months immediately after 9/11 the government began what was in effect a policy of preventive detention.  Over 1,200 suspects, most of whom were Arab or Muslim, were rounded up and held for interrogation.  The average length of detention was 80 days, and most have since been either deported or released.  Though the period of mass domestic detentions is over for now, the issue of the detention of enemy combatants, seized on foreign soil, is still very real.  Today, as a result of the war against the Taliban in Afghanistan over 500 suspected enemy combatants are being held at the U.S. naval base in Guantanamo Bay, Cuba.
Preventive detention of suspected enemy aliens captured at home and the indefinite detention of enemy combatants captured on foreign soil may be only one part of the United States’ and the United Kingdom’s overall antiterrorism strategy, but it raises many of the key legal questions at the heart of the general debate about law in times of national crisis and emergency.  In both countries there is perhaps no more fundamental legal principle than the idea that due process protects individuals from being detained and jailed indefinitely by their government.  This ancient principle, derived from the rule of law and protected by habeas corpus, is what distinguishes liberal-democratic governments from totalitarian ones.  In the words of Winston Churchill, “[t]he power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government.”(4)
This article focuses on the role of courts in the United States and the United Kingdom, and asks whether and to what extent courts can be effective checks against government abuse of liberty and rule of law in the name of increased security.  May government authorities, when confronted with the threat of terrorism, take whatever measures are necessary, including the suspension of rule of law and the adoption of such extra-ordinary measures as preventive detention?  Are decisions as to what is required in the interests of national security beyond judicial scrutiny or may they be reviewed to determine if the steps taken both necessary and proportionate?  
I shall argue that courts need to play a more prominent role to prevent government from overreaching and violating fundamental rights during today’s war on terror.  The traditional view of the role of courts during times of war and national emergency was perhaps best expressed by Lord Diplock in Council of Civil Service Unions v. Minister of the Civil Service (1985):

National security is the responsibility of the executive government, what action is needed to protect its interests is… a matter upon which those upon whom the responsibility rests, and not courts of justice, must have the last word.  It is par excellence a non-justiciable question.  The judicial process is totally inept to deal with the type of problems which it involves.(5)

Justice Hugo Black of the U.S. Supreme Court made the same argument several decades before in refusing to scrutinize the lawfulness of the government’s detention measures taken against Americans of Japanese ancestry:

Here, as in the Hirabayashi case, … we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population….  Like curfew, exclusion of those of Japanese origin was deemed necessary….(6)
 
If courts in this age of terror were to treat challenges to the government’s assertion of national security as non-justiciable political questions or to defer without scrutinizing the specifics of the claims, then they would be placing in jeopardy the key values of freedom, rule of law, and fairness.  In the conclusion of his judgment in A (FC) and others (FC) v. Secretary of State for the Home Department (2004), Lord Hoffmann of the House of Lords reminded his colleagues and the legal community of what is at stake in these security cases:

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life.  I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation….The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as [the Anti-Terrorism, Crime, and Security Act].  That is the true measure of what terrorism may achieve.

Courts have a valuable role to play, and there is no reason to doubt their institutional capacity to do the job well.  They are clearly needed to prevent grave injustices, such as torture and the indefinite detention of individuals mistaken to be involved with terrorism, and to curb the comparatively minor injustices resulting from the government’s invasions of privacy resulting from enhanced powers of surveillance and data collection.  In a liberal-democratic political system that values freedom and rule of law, the need to deliver on the promise of these core values is certainly as important as the need to protect against terrorist attacks.  As I will explain (see Part IV Judicial Challenges to the New Legislation), recent rulings by the U.S. Supreme Court and the British House of Lords suggest that there may be a trend toward an increased role for courts in reviewing the government’s security measures.  During wartime, courts traditionally have played a marginal role and security was understood to trump freedom.  But given the nature of this new war on terrorism, where the enemy is not a nation-state, but rather al-Qaeda, a global network of terrorists, the arguments used in the past to justify deference to the government’s exercise of broad emergency powers have not been convincing.


BRIEF HISTORY OF LAW DURING TIMES OF NATIONAL EMERGENCY IN THE UNITED STATES AND THE UNITED KINGDOM
A quick glance at history might provide some perspective on our present situation.  As a general rule, when the protections of liberty and rule of law were needed most during times of crisis and national emergency, courts had been all too willing to sacrifice liberty for security.  In his review of the American experience in his book All the Laws But One:  Civil Liberties in Wartime (1998), William Rehnquist, who was then the Chief Justice of the U.S. Supreme Court, cautioned against expecting too much from courts:

It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime.… The laws will not be silent in time of war, but they will speak with a somewhat different voice.

Such a view has been echoed in the United Kingdom.  In a 2002 decision, the Lord Chief Justice, Lord Woolf, spoke of the need for an appropriate degree of deference to the executive on security measures relating to the government’s antiterrorism policy:

When [scrutinizing the government’s action] in the particular context in which this challenge arises, namely a state of public emergency, the court must also recognize that the Executive is in a better position than a court to assess both the situation and the action which is necessary to address it.(7)

History suggests that the views of America’s former Chief Justice and Britain’s former Lord Chief Justice on the role of courts during times of national emergency have been the norm and explain why courts cannot always be relied upon to protect liberty and uphold the principle rule of law.  There are ample decisions by courts in the United States and the United Kingdom that support the maxim inter arma leges silent (“in times of war the laws are silent”).  The U.S. Supreme Court’s decision in Korematsu v. United States (1944), upholding President Roosevelt’s executive order soon after the attack on Pearl Harbor sending Americans of Japanese ancestry to relocation camps, and the British House of Lords’ judgment in Liversidge v. Sir John Anderson (1941), upholding the Home Secretary’s decision under Regulation 18B of the Defence of the Realm Act to detain those believed to be a threat to national security, are but two well known examples.  Since 9/11 and the beginning of the war on terrorism, the same question arises whether courts can be expected to do more than defer to the government’s assertion of necessity in defense of measures taken in the name of security.

United Kingdom

In A History of English Law, William Holdsworth explained that whether or not Chapter 39 of Magna Carta “was intended to safeguard the principle that no man should be imprisoned without due process of law, it soon came to be interpreted as safeguarding it.”  Over time the remedy of habeas corpus developed (Article 5 of the Petition of Right (1628) and the Habeas Corpus Act (1640)) to prevent against unlawful imprisonment.

Despite the protection of due process and habeas corpus, nearly 30,000 enemy aliens were detained in the United Kingdom soon after war broke out with Germany in 1914.(8)  The only law justifying the detentions was the law of necessity or the executive’s exercise of prerogative powers.  In 1915 Regulation 14B was made under the Defence of the Realm (Consolidation) Act (1914), which gave the Home Secretary the authority to arrest and detain any person who on the recommendation of the military authorities was suspected of being a threat to national security.  Detainees were allowed to appeal to an advisory committee with a judge presiding.
In 1916 Zadig, a naturalized British citizen who was detained by the Home Secretary under Regulation 14B, applied for habeas corpus.  He argued that because Act did not expressly give the Home Secretary the power to detain, the regulation was ultra vires.  His argument was rejected by every court, including the House of Lords.(9)  In R. v. Halliday, ex parte Zadig (1917), Lord Finlay ruled that the general presumption that liberty of the person will not be interfered with has “no relevance in dealing with an executive measure by way of preventing a public danger.”
Perhaps recognizing the need to be more explicit about the power to detain, Parliament in 1939 passed the Emergency Powers (Defence) Act.  Soon after a code of regulations came into force, including Regulation 18B, which permitted indefinite detention of individuals whom the Home Secretary had “reasonable cause to believe” were “of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm.”(10)  Though there was no formal procedure for reviewing detention orders, appeal to an advisory committee(11) was allowed, just as before under the 1914 Act.
Detentions of enemy aliens under Regulation 18B began soon after May 1940 when fears arose of a German “Fifth Column.”  Though the fear of a Fifth Column in Britain proved to be unfounded, nearly 30,000 enemy aliens were rounded up and imprisoned.  Detainees who sought relief from the courts had their applications for habeas corpus and actions for false imprisonment dismissed. The courts were reluctant to interfere.  The judgment of the House of Lords in Liversidge v. Sir John Anderson (1941) made clear that courts were not going to provide a meaningful check on the executive’s policy.  If the order was valid on its face and the Home Secretary indicated that he had reasonable grounds for suspecting the detainee was a threat, then courts would not review the facts and make an independent judgment on the reasonableness of the suspicion.  In the words of Viscount Maugham:
To my mind this is so clearly a matter for executive discretion and nothing else that I cannot myself believe that those responsible for the Order in Council could have contemplated for a moment the possibility of the action of the Secretary of State being subject to the discussion, criticism and control of a judge in a court of law.(12)

There were many decisions at the time like Liversidge which in effect upheld the Home Secretary’s broad power to suspend the writ of habeas corpus.  But Liversidge is remembered, and often cited, for Lord Atkin’s famous dissent:

I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive…. In this country, amid the clash of arms, the laws are not silent.  They may be changed, but they speak the same language in war as in peace.  It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.(13)
                       
United States

The American record has been remarkably similar.  During the Civil War, President Lincoln suspended the writ of habeas corpus and established military courts to try those suspected of being disloyal to the Union.  Despite the clear language in the U.S. Constitution reserving the power to suspend habeas corpus to Congress, Lincoln exercised it on several occasions, including the time when Merryman and other Southern sympathizers were arrested in Baltimore for harassing Union troops passing through on their way to Washington, D.C.  Merryman’s request for a writ of habeas corpus came before Chief Justice Roger Taney, who was sitting as Circuit Justice in the case.  He granted the writ, and criticized the President for overstepping his constitutional authority.  Chief Justice Taney, writing for Circuit Court for the District of Maryland, explained how the President’s action offended the fundamental constitutional principle separation of powers:

With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power.  He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law.(14)

Although the court issued the writ, Lincoln ignored the ruling.  Merryman remained in jail until he was indicted for conspiracy to commit treason.  He was released on bail, and never tried for the offence.
President Lincoln also claimed he had the power to establish military tribunals and try civilians who were suspected of aiding the Confederate war effort.  Milligan, a civilian living in Indiana, was arrested and charged with plotting with other southern sympathizers to free Confederate prisoners of war.  He was tried, convicted, and sentenced to death by a military court.  Before the sentence could be carried out, the war ended.  Milligan petitioned for a writ of habeas corpus, and correctly sensing the importance of the issues raised in this case, the lower federal court sent the case to the U.S. Supreme Court.
In Ex parte Milligan (1866),(15) the Supreme Court overturned Milligan’s conviction, ruling that the accused was entitled to a civilian trial so long as the civilian courts were open.  Milligan’s trial before a military tribunal was unlawful because the civilian courts in Indiana were operating even as the war waged.  Justice David Davis, writing for the Court majority, reasoned that the Constitution applied equally during times of war and times of peace:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.  No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.  Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false.(16)

It is important to remember that this powerful statement on the nature of law during times of national emergency came after the war had ended.  During the course of the war, the Supreme Court let stand President Lincoln’s orders to suspend habeas corpus, refused to review Ex parte Merryman even after the president ignored the lower courts decision to issue the writ, and did not object to the Executive Branch’s establishment and use of military tribunals in other cases.  It is also important to remember that the Court split five to four on why Milligan’s conviction by a military tribunal should be overturned.  Though the four justices who joined Justice Davis’ opinion believed military trials were always unconstitutional, the three justices who joined Chief Justice Salmon Chase’s concurring opinion believed that the use of military trials was permitted, so long as Congress had authorized them.  Since the military tribunal that tried and convicted Milligan was authorized by the President, and not Congress, they ruled in favor of the petitioner.  Nevertheless, the Supreme Court’s unanimous opinion in Ex parte Milligan is remembered most for its powerful statement in favor of the principle rule of law during times of war.
Congress passed the Sedition Act (1918) the year after the United States entered World War I.  The Act made it a crime to speak out against the war, on the theory that dissent would interfere with the government’s ability to recruit the soldiers needed to wage this war.(17)  More than 2,000 individuals, most of whom were members of the Socialist Party, were prosecuted under this Act.  In one such case, Schenck was tried and convicted for publishing an anti-war pamphlet.  He appealed on First Amendment grounds.  In Schenck v. United States (1919), the Supreme Court upheld the conviction.  Justice Oliver W. Holmes, writing for a unanimous court, ruled that freedom of expression may be restricted during times of crisis:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.  It is a question of proximity and degree.  When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.(18)

The “clear and present danger” test of First Amendment free speech was eventually rejected by the Supreme Court.(19)  But the Court’s decision in Schenck stands as reminder that even fundamental First Amendment freedoms such as freedom of speech and freedom of association, are at risk during times of war.
In 1942 the question left over from Ex parte Milligan (1866) arose again when eight Nazi saboteurs were captured on American soil.  Since the civilian courts were open, the issue was whether they could lawfully be tried in military tribunals.  President Roosevelt determined that the saboteurs were “unlawful combatants” and ordered them tried in military tribunals.  In Ex parte Quirin (1942),(20) U.S. Supreme Court upheld the lawfulness of the military trials, in effect, permitting derogation from the fundamental rights to due process (Fifth Amendment) and trial by jury (Sixth Amendment).  In so doing, the Court distinguished Ex parte Milligan on the narrow grounds that Milligan was a non-combatant.  So long as the accused were unlawful combatants captured during times of war, the Supreme Court sanctioned the use of military trials, even if the civilian courts were open.
Two months after the Japanese attacked Pearl Harbor President Franklin D. Roosevelt made one of his most controversial wartime decisions.  On February 19, 1942, President Roosevelt signed Executive Order 9066,(21) which authorized the Army to “designate military areas” from which “any persons may be excluded.”  After having designated the west coast of the United States a sensitive military area at risk of sabotage by people of Japanese ancestry, the Army ordered the forced removal of more than 120,000 people to so-called “relocation camps.”  Many who were forced to leave their homes and businesses were American citizens, some of whom even had children in the American armed forces.
Korematsu was a Japanese-American citizen who defied the order to relocate.  He was tried and convicted for failing to follow the order.  On appeal, the U.S. Supreme Court affirmed his conviction.  Justice Hugo Black’s majority opinion endorsed the view that courts during times of war must defer to the executive authority’s assertion of military necessity and not let concerns of civil liberties trump government policy.

The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion… Here, as in the Hirabayashi case,… we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained.  We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it…. We uphold the exclusion order…. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens…. But hardships are part of war, and war is an aggregation of hardships.(22)

It soon became apparent that a grave injustice was done.  In 1948 Congress passed the Evacuation Claims Act, which gave internees the right to file claims for lost or damaged property as a result of the relocation and detention program.  The Supreme Court’s opinion in Youngstown Sheet and Tube v. Sawyer (1952)(23) suggests that even the nation’s highest court realized its error and sought to repair the constitutional damage.  In this case, the Court struck down President Truman’s executive order directing the Secretary of Commerce (Sawyer) to seize and operate the nation’s steel mills to avert a threatened strike during wartime.
Prior to the attacks by al-Qaeda on 9/11 and 3/11, both the United States and Britain showed that during times of war and national emergency the balance between freedom and order shifted fairly far in the direction of order, allowing government in some instances near absolute power to deal with the emergency conditions.  Though both countries regretted the actions taken after the crisis had passed, and even tried to compensate the victims of its national security policies, the fact remains that acts widely regarded as unlawful and grave wartime errors were committed.  History suggests that courts were unable or unwilling to prevent the government from overreaching.  If such abuses of government power had been allowed in the past, the fear is that they could be repeated today.


THE ENACTMENT OF NEW ANTI-TERRORISM LEGISLATION IN THE UNITED STATES AND THE UNITED KINGDOM
            The 9/11 attacks of al Qaeda led to the enactment of new, antiterrorism legislation in both the United States and the United Kingdom.  For the United States the threat of international terrorism and the need for new tools to combat it were problems that geography had mercifully shielded from most Americans.  But for the United Kingdom, terrorism and security measures related to the troubles in Northern Ireland had been all too familiar.

United Kingdom

            Antiterrorism legislation in the United Kingdom has developed over time largely in response to the strife in Northern Ireland.  At about the same time relations improved in Northern Ireland, the threat of terrorism from global networks of Islamic militants began to increase.  The government decided, based largely on the findings of Lord Lloyd in the “Inquiry into Legislation against Terrorism (1996),” that the time had arrived to put antiterrorism legislation on a “permanent footing.”(24) The result was the Terrorism Act 2000, which broadened the definition of terrorism to include the new threats, prohibited fundraising on behalf of designated terrorist organizations, and increased law enforcement’s powers to stop and search, arrest without warrant, and detain individuals suspected of terrorist activities.
            Parliament reacted to the 9/11 attacks on the United States in two ways.  First, it introduced and passed with great speed, a new law, the Anti-Terrorism, Crime and Security Act 2001, that aimed to strengthen the Terrorism Act 2000, especially in the area of immigration controls.  Secondly, it took the action necessary to derogate from its obligations under Article 5 of the European Convention on Human Rights.(25)  Derogation from Article 5, which guarantees the right to liberty and prohibits detention without trial, was believed to be necessary since the new act’s most controversial provision (Section 23) was going to give the Home Secretary the power to detain suspected terrorists indefinitely without charge or trial.

United States

In response to the 9/11 attacks, Congress passed the USA Patriot Act.  Introduced in the House on October 2, 2001, the Act was passed with great speed and by overwhelming majorities in both the House (357-66) and the Senate (98-1).  President George W. Bush signed the legislation into law on October 26, 2001.

The Patriot Act defines the crime of terrorism broadly and provides law enforcement agencies greater powers of surveillance, greater oversight of financial activities to disrupt the funding of terrorist groups, and new powers to access information on citizens through secret warrants.  One of the most controversial provisions of the Act is Section 412 which permits the Attorney General to detain terrorist suspects for up to seven days if he certifies that he has reasonable grounds to believe that the suspects pose a threat to national security.
In 2006 Congress passed the Military Commissions Act, which, among other things, removed from the federal courts jurisdiction in cases brought by suspected enemy combatants being held at Guantanamo Bay, Cuba.  As will be explained below, the act was passed in the aftermath of the U.S. Supreme Court’s decision in Hamdan v. Rumsfeld (2006) ruled that the power to establish military commissions resides in Congress, not the Executive.


JUDICIAL CHALLENGES TO THE NEW LEGISLATION
Courts in the United States and the United Kingdom have begun to hear challenges to their new, post-9/11 antiterrorism laws.  The cases highlight the difficulties courts typically face when trying to strike the balance between counter-terrorism efforts and individual rights.  The central question is whether and under what circumstances courts may review the government’s security measures for legality or procedural regularity.  In 2004 the U.S. Supreme Court decided two cases and the U.K. House of Lords decided one which answered many of the questions with regard to the government’s policy on terror detentions.
The specific legal issues, as will be explained below, are different in the American and British cases.  The American cases, Hamdi v. Rumsfeld (2004)(26) and Rasul v. Bush (2004),(27) which stemmed from the policy of holding indefinitely members of al Qaeda who had been captured on the battlefields in Afghanistan, focused mainly on procedural issues:  What process is due to those who question the lawfulness of their detention?  Are detainees entitled to such basic rights as the right to counsel, the right to file petitions for habeas corpus in U.S. courts, and the right to challenge their status as enemy combatants in a fair and impartial proceeding?  The British case focused more on substantive issues:  Does the government have the authority to detain indefinitely foreign nationals suspected of terrorist involvement?  Is the country’s antiterrorism law discriminatory, since the provision allowing detention without charge or trial applies only to foreigners?  When read together these decisions suggest a new willingness by courts in the United States and Britain to review more carefully their government’s security measures.

United States

            The U.S. Supreme Court in a pair of decisions handed down on June 28, 2004, made the first important adjustment to the constitutional balance between liberty and security since 9/11.  In Hamdi v. Rumsfeld, the nation’s highest court ruled that Hamdi, the American-born Saudi taken from the battlefield in Afghanistan and held since 2002 as an enemy combatant in a military prision, had a right to contest his classification before an impartial judge.  Eight of the nine justices believed the open-ended detention was improper for either constitutional or statutory reasons.  Justice O’Connor’s plurality opinion, joined Chief Justice Rehnquist, Justice Kennedy and Justice Breyer, held that even though detention of enemy combatants had been allowed by Congress in its resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attack,”(28) “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”(29)  Though Justice Souter, in a concurring opinion joined by Justice Ginsburg, questioned whether the Force Resolution properly authorized Hamdi’s detention, they joined the plurality in its conclusion that Hamdi is entitled to a meaningful opportunity to contest the designation that is the reason for his detention.
            Justice Scalia, in a dissenting opinion joined by Justice Stevens, concluded that Hamdi’s indefinite detention was unconstitutional, and no meaningful opportunity to contest the designation could save it:

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.  Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, Sect. 9, cl. 2, allows Congress to relax the usual protections temporarily.  Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge.

For Justice Scalia, the key issue in judging the lawfulness of detentions such as Hamdi’s is whether Congress has suspended habeas corpus.  If Congress suspends habeas corpus in reaction to a national emergency, then indefinite detentions by the executive cannot be judged unlawful.  If, on the other hand, Congress has not suspended habeas corpus, detained individuals like Hamdi ought to be granted a habeas decree and released.
            Justice Thomas was the only justice on the Supreme Court who believed that Hamdi’s detention was lawful.  In his dissenting opinion, he argued that courts ought to defer to the President in matters dealing with national security.  His argument is reminiscent of the one made by Justice Black in his opinion for the Court in Korematsu:

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained.  This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision.

            In Rasul v. Bush (2004) the Supreme Court ruled 6-to-3 that federal courts have jurisdiction to review the status of hundreds of foreigners detained at Guantanamo Bay, Cuba.  In making the argument for jurisdiction, Justice Stevens turned to English legal history:

Application of the habeas statute of persons detained at the base is consistent with the historical reach of the writ of habeas corpus.  At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as claims of persons detained in the so-called “exempt jurisdictions,” where ordinary writs did not run, and all other dominions under the sovereign’s control.  As Lord Mansfield wrote in 1759, even if a territory was “no part of the realm,” there was “no doubt” as to the court’s power to issue writs of habeas corpus if the territory was “under the subjection of the Crown.”

By ruling that enemy combatants being held at Guantanamo Bay, Cuba are entitled to the protections of habeas corpus, the Supreme Court extended the reach of due process into the government’s conduct of the war on terror.  Together with its decision in Hamdi the U.S. Supreme Court indicated its willingness to determine if the government’s antiterrorism policies are being carried out with the minimum harm possible to fundamental rights.
            In Hamdan v. Rumsfeld (2006), the Supreme Court struck down the military commissions President Bush established by executive order to try suspected members of al Qaeda.  In a 5-to-4 decision, the Court rejected the administration’s arguments that the President as commander-in-chief had the power to establish military tribunals to try suspected enemy combatants despite the fact that they contravened provisions of the Geneva Convention that had been made part of American law.  Justice Stevens writes:

                        We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed, moreover, the          truth of the message implicit in that charge—viz., that Hamdan is a dangerous             individual whose beliefs, if acted upon, would cause great harm….But in   undertaking to try Hamdan and subject him to criminal punishment, the Executive         is bound to comply with the Rule of Law that prevails in this jurisdiction.

The Supreme Court’s ruling in the Hamdan case shifted the spotlight to Congress, which, according to the Court majority, had the power (not the President) to establish the rules and procedures of regular military courts-martial.  Congress in 2006 enacted the Military Commissions Act, and, at the time of writing, the constitutionality of that act is now before the U.S. Supreme Court in a case called Boumediene v. Bush.(30)

United Kingdom

In December 2004 the House of Lords ruled in an 8-to-1 decision that section 23 of the Anti-Terrorism, Crime and Security Act (2001) giving the Home Secretary the power to detain suspected terrorists without charge or trial violates Articles 5 and 14 of the European Convention on Human Rights.  The Law Lords issued a “declaration of incompatibility” under section 4 of the Human Rights Act (1998) and referred the matter to Parliament which then had to decide if and how the law should be amended.

Lord Bingham of Cornhill, the senior lord of appeal, wrote the lead judgment.  He reasoned that the fatal flaw in the government’s detention policy was the way it discriminated against foreign nationals.  He began his judgment by describing the appellants and nature of their legal claims:

The appellants share certain common characteristics which are central to their appeals.  All are foreign (non-UK) nationals.  None has been the subject of any criminal charge.  In none of their cases is a criminal trial in prospect.  All challenge the lawfulness of their detention.  More specifically, they all contend that such detention was inconsistent with obligations binding on the United Kingdom under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998…

In concluding his analysis of appellant’s claim of discriminatory treatment, Lord Bingham wrote:

The appellants were treated differently from both suspected international terrorists who were not UK nationals but could be removed and also from suspected international terrorists who were UK-nationals and could not be removed.  There can be no doubt but that the difference in treatment was on grounds of nationality or immigration status (one of the proscribed grounds under Article 14).

            The judgments of Lord Bingham’s colleagues identified other problems with the government’s detention policy.  Several law lords expressed concern with the government’s claim that the threat of terrorism today requires extra-ordinary powers.  Lord Nicholls of Birkenhead questioned whether the “wholly exceptional circumstances” needed to justify actions which were “anathema in any country which observes the rule of law” were present.  Lord Hoffmann also raised this issue:

The Home Secretary has adduced evidence, both open and secret, to show the existence of a threat of serious terrorist outrages….But the question is whether such a threat is a threat to the life of the nation.  The Attorney General’s submissions and the judgment of the Special Immigration Appeals Commission treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation.  But in my opinion this shows a misunderstanding of what is meant by “threatening the life of the nation.”

            Lord Walker was the lone dissenter who sided with the government in this case.  But even his judgment spoke of the unique challenge facing the court in this case:

The detention without trial of terrorist suspects is therefore a crucial instance—probably the most crucial instance of all—of the problems of reconciling individual human rights with the interests of the community, and of determining the proper functions, in this process, of different arms of government.

He then explained that in cases such as this deference to the government authorities responsible for the country’s antiterrorism policy was required:

The appropriate intensity of scrutiny of decisions in this crucial area—involving both national security and individual rights—presents a real dilemma…. The court should show a high degree of respect for the Secretary of State’s appreciation, based on secret intelligence sources, of the security risks; but at the same time the court should subject to a very close scrutiny the practical effect which derogating measures have on individual human rights, the importance of the rights affected, and the robustness of any safeguards intended to minimise the impact of the derogating measures on individual human rights.
     
Unlike the United States Supreme Court, the House of Lords lacks the power to strike down the provisions within the antiterrorism law that offend fundamental principles of due process and rule of law.  Nevertheless, in this landmark decision, the House of Lords came as close as it could to becoming a “constitutional court.”  Now that the government’s detention policy had been declared incompatible with human rights, the pressure shifted to Parliament to change the offending law and procedures.  Parliament responded by enacting the Prevention of Terrorism Act 2005.  This act introduced “control orders” which empowered the Home Secretary to restrict a suspected person’s freedom of movement and rights to associate and communicate with others.  This new scheme was soon challenged in U.K. courts.
            In 2007 the House of Lords ruled in a series of cases(31) that the most restrictive aspect of “control orders,” an 18-hour per day home curfew, and the provision that allowed intelligence-based evidence to be withheld from terrorist suspects and their lawyers, breached the human right to liberty and the right to a fair trial, respectively.  However, the Law Lords upheld the broad outlines of the “control orders” regime and ruled that none of the existing control orders needed to be changed.  The human rights group Justice said that this was a significant decision and “a victory for fairness over secrecy.”(32)


CONCLUSION
There are two reasons that may explain why courts today, during this new age of terrorism, may be willing to review more carefully the government’s security measures.  In the post-9/11 decisions by the British House of Lords and the U.S. Supreme Court, there was considerable concern about repeating the mistakes of the past.  It was as if the ghosts of Korematsu, Liversidge, et alia were in the judges’ chambers.  In his analysis of the government’s argument for indefinite detention in the Hamdi case, which was based largely on Ex parte Quirin, Justice Antonin Scalia wrote that this “case was not this Court’s finest hour.”  Lord Hoffmann made a similar point in A (FC) and others (FC):

There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government.  It happened during the Napoleonic Wars and during both World Wars in the twentieth century.  These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised.

The second reason may be that the nature of the states of emergency in traditional wars between nations is different from the threats posed by global networks of terrorist organizations.  In the past, during the periods of declared national emergency resulting from war, courts have shown considerable deference to government decision-makers.  But today’s war on terror is different.  It is not a war against a country which is threatening the survival of one’s own country.  The current war on the global networks of terrorist organizations is a war without borders that is not going to end with a traditional surrender.  Because of these differences, courts today may be reluctant to be as deferential as they were in the past.
            Evidence of this concern about the nature of the al Qaeda threat to national security can be seen in the judges’ reasoning.  Lord Hoffmann asked and answered in considerable detail, “What is meant by ‘threatening the life of the nation’?”  Justice Sandra Day O’Connor wrote:

We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable.  As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement… If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.

If courts are to play a greater role in reviewing the government’s security measures, then what standard should they use?  How much deference must courts give to the government’s claims of necessity?  Under the “no deference” approach, courts would conduct an independent review of the challenged actions and declare them null and void (or in the case of the United Kingdom, make a declaration of incompatibility) if they violate rule of law or fundamental rights.  Under this approach courts would show no deference to government authorities and would make it practically impossible for government to ever derogate from basic rights.  Under the “some deference” approach, courts would review carefully the reasons for the challenged action and determine if the action taken is proportionate to the danger posed.  Under this approach courts would recognize the need to defer to the government on some matters and would allow government to derogate from its commitment to protect basic rights only in the narrowest possible circumstances.

I believe that the “some deference” approach best describes the new, heightened judicial standard used by courts in the United States and the United Kingdom to review the government’s detention policies.  It is clearly a standard more rigorous than the traditional one which regarded challenges to the government’s national security policies as non-justiciable political questions.  And it is certainly a more realistic standard than the “no deference” approach, which views rights as absolutes that trump government policies on all occasions.  Fundamental rights must not be sacrificed lightly in the war on terror.  That is why the antiterrorist measures adopted must be proportionate and take into consideration key democratic values.  The policy of indefinite detention, the courts rightly ruled, failed this test.
The United States and the United Kingdom are not the only liberal-democratic societies facing the threat of global terrorism today.  Undoubtedly there will be cases challenging security measures brought in courts in other countries that value freedom and rule of law.  Just how the courts respond will reveal much about the nature of law and the respect for fundamental freedom in the western world.  Clearly there is much at stake.  If courts in the western world begin to abandon the values at the core of their societies, then the terrorists will have won.  To win the war on terror, courts must play a more activist role and keep the government from sacrificing freedom and the rule of law.

Note
(1) Department of Political Science, Northeastern University, Boston, Massachusetts, USA
(2) In the first few months after the 9/11 attacks, the Federal Bureau of Investigation and the Immigration and Naturalization Service arrested, detained, and interrogated over 1,200 citizens and aliens.  Some were arrested and charged with visa violations, but none were charged with any serious crime or acts of terrorism.  In its investigations of these detentions, the Office of the Inspector General (OIG) discovered evidence of detainees being beaten and denied normal access to legal counsel and contact with their families.  As for the exact number of detainees, the OIG concluded that the figure must have been greater than 1,200 since “the Public Affairs Office stopped reporting the cumulative totals after the number reached 1,200.”    Office of the Inspector General, Department of Justice, “The September 11 Detainees:  A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks” (June 2, 2003) http://www.usdoj.gov/oig/special/0306/full.pdf.
(3) The “material witness statute,” 18 U.S.C. Sect. 3144 (2000) allows government prosecutors to detain individuals whose testimony might be needed for grand jury proceedings.  According to a report by Human Rights Watch, almost 60 individuals have been held under the statute since 9/11.  In United States v. Awadallah, 349 F. 3d 42 (2d Cir. 2003), a federal appeals court ruled that individuals could be held indefinitely in order to secure grand jury testimony under the material witness statute.
(4) Cable from Winston Churchill to Herbert Morrison, Home Secretary, November 21, 1943.
(5) [1985] AC 374.
(6) Korematsu. v. United States, 323 U.S. 214 (1944).
(7) A, X and Y and Another v. Secretary of State for the Home Department, [2002] EWCA Civ. 1502.
(8) A.W. Brian Simpson, In the Highest Degree Odious:  Detention without Trial in Wartime Britain (1994), p. 15.
(9) R. v. Halliday, ex parte Zadig [1917] AC 260.
(10) Defence (General) Regulations, 1939, reg. 18B, para. (I.).
(11) Ibid., “For the purposes of this regulation, there shall be one or more advisory committees consisting of persons appointed by the Secretary of State; and any person aggrieved by the making of an order against him, …may make his objections to such a committee.”
(12) Liversidge v. Sir John Anderson [1942] AC 206, at 220.
(13) Liversidge v. Sir John Anderson [1942] AC 206, at 244.
(14) Ex parte Merryman, 17 F. Cas. 144 (C.C..D. Md. 1861) (No. 9,487).
(15) 71 U.S. (4 Wall.) 2 (1866).
(16) 71 U.S. (4 Wall.) 2, at 120-121 (1866).
(17) The Sedition Act (1918) made it a crime to use “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the flag of the United States, or the uniform of the Army or Navy…”
(18) Schenck v. United States, 249 U.S. 47, at 52 (1919).
(19) Very soon after having endorsed “clear and present danger,” Justice Holmes changed his mind.  See Abrams v. United States, 250 U.S. 616 (1919).  His views on the need for a more speech-protective test of First Amendment freedom were expressed in dissent while he was on the bench, and would not command a majority until Brandenburg v. Ohio, 395 U.S. 444 (1969).
(20) 317 U.S. 1 (1942).
(21) 7 Fed. Reg. 1407 (1942).
(22) Korematsu v. United States, 323 U.S. 214 (1944).
(23) 343 U.S. 579 (1952).
(24) S.H. Bailey, D.J. Harris, and D.C. Ormerod, Civil Liberties:  Cases and Materials, 5th ed. (2001), p. 567.
(25) Human Rights Act 1998 (Designated Derogation) Order 2001.
(26) No. 03-6696, slip opinion (Decided June 28, 2004)
(27) No. 03-334, slip opinion (Decided June 28, 2004).
(28) Authorization for the Use of Military Force, 115 Stat. 224.
(29) Hamdi v. Rumsfeld (2004), Justice O’Connor.
(31) Secretary of State for the Home Department v. E and another, [2007] UKHL 47 (October 31, 2007); Secretary of State for the Home Department v. MB (FC), [2007] UKHL 46; and Secretary of State for the Home Department v. JJ and others, [2007] UKHL 45.
(32) Peter Walker, “Control Orders Breach Human Rights, Law Lords Say,” The Guardian, October 31, 2007.