Should the U.S. Enact British-Type Laws To Fight Terrorism? Only If We Adopt the Protections of Civil Liberties Those Laws Include

By ELAINE CASSEL

Monday, Aug. 21, 2006

About a week ago, on the Sunday talk shows, the Bush Administration began dropping hints that the British had done such a good job thwarting the terrorist plot to detonate liquid bombs on airplanes, that maybe we ought to be more like them.

How, exactly? Not in how intelligence and law enforcement professionals do their jobs. Though the Administration did praise their work, no one is discussing restructuring the CIA to be more like MI-5, or the FBI like Scotland Yard.

That's probably unfortunate. The British "watch and wait" stance toward persons suspected of being involved in terrorism may be more effective than the American method of arresting people quickly on terrorism charges that vaporize when factually challenged. "Watch and wait" seemingly worked well to thwart the recent U.K. plot.

Instead, according to the Administration, it might ask for new laws patterned after British legislation. If we had laws like the Brits', they say, their hands would not be tied in fighting terrorism.

Thus, Attorney General Alberto Gonzales has directed the Justice Department's Office of Legal Counsel to conduct a "side-by-side" comparison of British and United States anti-terrorism laws -- with a view toward proposing new legislation or amendments to our laws.

British Laws Would Be Better Than Current Administration Practices

Mirroring British law might not be a bad idea. Their anti-terrorism laws do provide more tools to law enforcement. They also provide for more judicial oversight and protection of citizens' civil rights. But, in the bargain, the Bush administration needs to give up practices that violate federal laws, the U.S. Constitution, and international law.

For instance, British law does not allow people to be held indefinitely on material witness warrants or imprisoned for life (or tried by a military tribunal and executed) based on "enemy combatant" designations. And there is no evidence that the British government engages in these practices.

Nor does British law countenance the process of "extraordinary rendition" -- detaining people, then sending them to foreign countries to be interrogated and tortured, violating British and international law. The British MI-5, as far as we know, is not kidnapping people and imprisoning them secretly.

Of course, I don't think that the Bush Administration plans to give up these outrageous practices. What the Administration has in mind, I fear, is to add to its arsenal the powers of British laws, without their protections against abuse and overreaching. Unfortunately, this Administration seems never to have met a law that it doesn't like to break--or distort and contort-- beyond all reason.

An Ironic Turn: After Disparaging Foreign Law, The Administration Wants to Borrow From It

The Administration's move to borrow from British law is highly ironic -- given its mockery of Supreme Court justices who look to foreign and international law for guidance in deciding certain types of cases. (For instance, some Justices recently found other nations' practices relevant to determining whether punishments are "cruel and unusual" and thus contrary to the Eighth Amendment.)

Given the Administration's stance, it's no wonder that Chief Justice John Roberts and Justice Samuel Alito each went to great pains at their Senate confirmation hearings to forswear consideration of foreign and international law. There was even, temporarily, a movement afoot in Congress to enact a law that would forbid federal judges from consulting international law -- despite the obvious separation of powers issue such a law would raise.

But irony aside, should the Administration eat its words and push for new--and, presumably, additional--laws to fight terrorism that mirror British laws?

Perhaps -- but only if it gives up many of its current practices that operate outside the law and agrees to abide by new laws.

The U.K.'s Twenty-Eight Day Detention Law

When lauding British law, Administration spokespersons have been focusing on laws related to detention of suspects and surveillance.

I'll consider the area of detention first.

Just as Congress enacted the USA Patriot Act shortly after September 11, the Brits, too, adopted new anti-terrorism laws during that time period. Some of these laws were repealed or revised in 2005 and 2006 -- but only after vigorous parliamentary debate and oversight. (In contrast, a same-party Congress rubber-stamped Patriot Act renewal.)

In 2006, after the terrorist attack on trains in London, Britain revised a 2001 anti-terrorism law by doubling the time a suspect could be held without charge -- from 14 days, to 28. But the revision added an important safeguard: After 14 days, the police must apply to a court for permission to hold the suspect for an additional 7 days; then, 7 days after that, they must reapply. At each court hearing, the progress of the investigation must be disclosed to the court, usually in closed session.

Does U.S. Law Really Allow Only 48-Hour Detention? It May, But the Bush Administration Ignores It

Attorney General Gonzales and others have repeatedly said that U.S. law enforcement authorities are required to bring suspects before a magistrate after 48 hours -- and have thus sought the ability to detain people for much longer periods, as British law allows.

While this may sound sensible, the truth is that there are already many ways around the 48-hour limit -- ways that have been exploited since September 11.

One is the "material witness" warrant. Since 1984, under federal law, the government, in narrow circumstances, may issue such a warrant to secure the testimony of witnesses who might flee in order to avoid testifying in a criminal proceeding.

Since September 11, this law has been used -- indeed, abused, violating its limitations and intent -- to hold people for questioning even when there is no specific criminal proceeding pending, and in some cases, when there is not even an open investigation.

Under the law as written, the person was supposed to be held only as long as it took to take a deposition or otherwise obtain testimony. But that's not what happened to several individuals after September 11 -- including U.S. citizens Jose Padilla and Brandon Mayfield, an Oregon attorney wrongly associated with the 2004 Madrid train bombings due to a faulty fingerprint match.

When Padilla was appointed an attorney who called for his release, President Bush named Padilla an enemy combatant and the military took him from detention in Manhattan to a military brig in South Carolina. The Supreme Court dismissed Padilla's first challenge to his detention on procedural grounds.

Only on the eve of a second Supreme Court hearing on the challenge, did the government -- in a bid to moot the case -- hand Padilla over to law enforcement in Miami. There, four years after he was detained, Padilla was finally charged with an offense -- a terrorist conspiracy. But the charges are so weak that the federal judge in Miami overseeing the case recently told the government it was in danger of their being dismissed.

There are other cases, too, in which people were held for a year or more under the material witness provision. The government repeatedly argues that there is no time limit for imprisoning people under such a warrant, but judges have been inclined to disagree.

Still, by all accounts, the Bush Administration has continued to use the material witness law to hold people for inordinate amounts of time, without charging them with any crime. So where's the 48-hour limit that "ties its hands"?

Then, there is the Bush administration's practice of naming people "enemy combatants" and insisting that it can imprison them essentially forever--or until the end of the "war on terrorism." (President Bush granted this power to himself by Executive Order in November 2001.) In addition to Padilla, hundreds of prisoners at Guantanamo Bay have been held as "enemy combatants," even though only a few are alleged to have engaged in any hostile act against the U.S. The Executive Order casts a wide net over those who have, or might, commit acts of "terrorism," which is vaguely defined.

What 28-Day Detention In the U.S. Might Look Like

Does the Bush Administration plan to give up what it says is its right to pick up anyone anywhere, anytime, name him an enemy combatant, imprison him, and hold him until the "end of hostilities"? I think not. After all, the Supreme Court did not invalidate this practice in its ruling in Hamdan v. Rumsfeld -- even as it rebuffed other Administration positions vis-à-vis detainees. And this Administration has typically used all the powers available to it (and more).

So what will it mean if the U.S. moves to 28-day detention, as the British have? It seems very unlikely that Congress or the Administration will allow periodic judicial review, as occurs in the British system. And it seems unlikely that the Administration will abide by the 28-day limit for anyone who is a genuine terrorism suspect; for such detainees, it will doubtless continue to rely on indefinite detention based on a unilateral "enemy combatant" designation, and/or on abuse of material witness warrants.

Thus, importing 28-day detention from the British system, in the way I fear will occur under the Bush Administration, may simply mean that we encourage still more civil liberties abuses -- with innocent persons kidnapped out of their daily lives for almost a month based on government hunches, without access to judicial review, then released without remedy.

The British Framework of "Controls": A Useful Tool?

There is another British law that might be a good candidate to be borrowed or mirrored in our system -- though the Bush Administration has not yet mentioned it.

In 2005 the British enacted a slate of terrorism prevention laws that allows certain "controls" over persons thought to be plotting terrorist acts, for instance, by temporarily banning cell phone and Internet use and restricting access to some groups and venues.

These "control" procedures make it easier for the government to conduct surveillance and keep tabs on those suspected of terrorist activity. The law mandates judicial approval and review. The application for controls must be based on intelligence information that a court assesses. In an emergency, an order can be given by the Home Secretary (the counterpart of our Attorney General), but the order lasts only seven days and then must be reviewed by a court.

Control orders are limited in scope and time, though they can last up to a year. The individual can challenge the order, but a breach of the order is a criminal offense.

Control orders would certainly be preferable and more in tune with our Constitution and Bill of Rights, than are the Bush Administration's abuse of the material witness law and its practice of imprisoning people as enemy combatants.

British-Type Surveillance Laws Would Promote and Protect Civil Liberties

In terms of domestic surveillance, it is hard to imagine what more power the Administration could possibly want, beyond those it already asserts.

For instance, the Administration claims that it is not limited by the warrant requirement of the Foreign Intelligence Surveillance Act (FISA). Since 2001, it has been conducting surveillance without judicial intervention or oversight, through the National Security Agency (NSA).

In addition, Attorney General Gonzales has admitted to Congress that there are even more secret surveillance activities going on; it seems the NSA program may only be the tip of the surveillance iceberg.

It turns out, though, that the Administration's claims of power may well be unconstitutional. Indeed, a federal judge on Thursday ruled the NSA domestic surveillance practice unlawful and ordered it permanently enjoined. The government filed an immediate appeal, and the NSA program may yet be upheld, but what if it isn't? What if the Supreme Court once again rules against the Administration in a "war on terror" case?

In that event, the Administration may consider the British model in which surveillance is conducted under its 2000 Regulation of Investigatory Powers Act (RIPA). Unlike FISA, RIPA takes into account advances in communications technology.

Again, though, if we borrow from British law, we ought to borrow not just its powers but its protections. RIPA puts strict parameters on every type of surveillance, requires administrative and judicial oversight, and provides remedies for victims of its unlawful use or application. RIPA limits the purposes for which surveillance may be used; it also designates who can authorize the surveillance, who can engage in it, and the uses that can be made of the evidence gained.

Also, under RIPA, independent judicial review kicks in at certain levels, and must be obtained at the outset for certain types of surveillance. Can you imagine the Bush White House accepting that kind of restraint? I think not; President Bush maintains he has virtually unlimited -- and unchecked -- surveillance powers as Commander-in-Chief of the Armed Forces.

Unlike the Bush Administration, The British Government Respects Its Laws and Courts

The Bush Administration could and should borrow something other than laws from the British: Respect for the rule of law and the proper role of the courts.

The Bush Administration could hardly be more ardent and combative in trying to evade judicial review -- with practices ranging from "enemy combatant" designations, abuse of material witness warrants, claiming Guantanamo is outside the reach of U.S. courts, keeping programs secret despite (or because of) the fact that courts are bypassed, and engaging in "extraordinary rendition."

Prime Minister Tony Blair has not resorted to such tactics -- and Parliament, as noted above, builds judicial review into its anti-terrorism laws as a matter of course.

While the Bush Administration remains contemptuous of the federal courts, federal law, and the Constitution, however, we should all be wary of its pleas for new laws. If experience serves, our versions of the laws won't be geared -- like the U.K.'s -- toward preserving judicial review and civil liberties. Instead, they'll be geared toward preserving -- even enhancing -- executive power, and secrecy.

And as the Bush Administration operates largely in secret, we will be kept in the dark about whether it is abiding by new -- or old -- laws. No doubt, what the Bush Administration would tack onto British laws would be assurances that we would never know about any violations or abuses. And that's the ultimate irony -- laws being passed to undermine the rule of law itself.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her textbook, Criminal Behavior (2nd ed., in press, Erlbaum), explores crime and violence from a developmental perspective. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was published by Lawrence Hill in 2004.

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