Democratic countries around the world are struggling to effectively fight terror without compromising basic human rights and freedoms – the essential democratic values. In this article from IDI's Hebrew online journal Parliament, IDI's Yogev Tuval presents an analysis and comparison of post-9/11 anti-terrorism legislation in the United States and Britain, and explains how certain laws threaten democracy.
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Many democratic countries have become increasingly willing to take severe measures against the rising threat of international terrorism. The terrorist attacks on September 11, 2001 and other major terrorist attacks throughout the world demonstrate that in the 21st century, the threat of terrorism has become real and acute, and that governments cannot afford to ignore it. Democratic countries are thus faced with a serious challenge: how can you fight terrorism effectively and uncompromisingly without seriously compromising human rights and basic freedoms, which are the essence of democracy? This challenge is most pronounced in the legal arena when the executive branches of democratic countries pass laws that empower the countries' security forces to take tough and invasive measures as part of the war on terror.
In this paper, I chose to focus on a review of key anti-terrorism legislation in Britain and the United States from the events of 9/11 to the present. The decision to focus on those countries is based on their current position at the forefront of the international war on terror along with their long-standing democratic traditions. Therefore, a review of the advantages and the disadvantages of the legal tools they developed to fight terrorism could help Israel develop innovative legal tools against terrorism that will help us fight terrorism effectively without unnecessarily compromising human rights.
Over the years, Britain has coped with the terrorist attacks committed against it by passing anti-terrorism legislation. In the 20th century, Britain passed emergency legislation to deal primarily with the violent conflicts between Protestants and Catholics in Northern Ireland and with the Irish Republican Army (IRA) terrorist attacks. However, since the year 2000, and especially since the September 11, 2001 terrorist attacks, Britain's attention has been directed at dealing with the escalating international terrorism. In 2000, the British parliament adopted the Terrorism Act. This law annulled the British emergency legislation that had been directed primarily at Irish terrorism, and completely revised the legal tools against terrorism in Britain.
The first innovation included in the Terrorism Act of 2000 is the definition of the term "terrorism" in Section 1 of the law: "terrorism" is the use or the threat of action intended to advance a political, religious or ideological cause, or which was planned with the purpose of intimidating or frightening the public in order to force the government or any other government authority to act or refrain from acting. This includes the use of violence against a person, serious damage to property, serious disruption of infrastructures, systems or utilities, or any other act that endangers public health or safety. The law also establishes special offenses linked to terrorism, including membership in a terrorist organization (Section 11), assisting a terrorist organization (Section 12) and offenses connected to funding terrorism (Sections 15-18), and imposes harsh punishment for them.
The Terrorism Act of 2000 also includes provisions for the arrest of persons suspected of involvement in terrorism and provisions regarding search and detention powers. Among other things, the law authorizes the arrest, prior to serving an indictment, of persons suspected of involvement in terrorism for up to 48 hours, which may be extended by a judge's warrant for another seven days.
The Terrorism Act of 2000, the key anti-terrorism legislation passed by the British in recent years, has led to the arrest of hundreds of people suspected of involvement in terrorism in Britain and of dozens convicted for the offenses it encompasses; but it is not the only anti-terrorism legislation passed in Britain. Immediately following the 9/11 terrorist attacks, Britain began developing additional legal tools to confront international terrorism. In December 2001, the British parliament adopted the Anti-Terrorism, Crime and Security Act (hereinafter: ATCSA), which considerably extended the powers of the British security services in a broad number of areas related to the war on terrorism, including detentions, investigations and surveillance, and to the war on non-conventional terrorism. Regarding arrests, Section 4 of the law created a new mechanism that empowered the Minister of Interior to order the administrative detention of foreign nationals (that is, not British citizens or residents) suspected of being international terrorists who threaten Britain's national security and who cannot be deported to their countries of origin.Administrative detention is preventive detention for security reasons that may be enforced without a trial and without indictment, as opposed to criminal detention, which requires conducting established criminal procedure against the detainee and having reasonable suspicion that the detainee committed a criminal offense.
In the years 2001-2003, Britain arrested 16 foreign nationals on the basis of the ATCSA. Two of them were allowed to leave Britain for Morocco and France, while in 2004, nine others appealed their detention to the House of Lords (the highest judicial court in Britain), where they disputed the legality of the ATCSA. In December 2004, the justices ruled by a majority that the provisions of the law dealing with the detention of people suspected of involvement in terrorism must be revoked because they discriminate between foreign and British nationals by allowing the administrative detention of foreign nationals, but not of British citizens, even if they present the same danger to Britain's national security. Furthermore, the justices decided by a majority ruling that the British authorities had failed to prove, in these specific cases, that they could not have used less extreme measures against the detainees, rather than resort to administrative detention measures such as electronic tagging, restraining and surveillance orders, and so on.
Following the ruling, the British Parliament rescinded the provisions of the ATCSA regarding the arrest of people suspected of involvement in terrorism, and instead adopted a new law called the Prevention of Terrorism Act of 2005. This law, which is in force today, allows restraining and surveillance orders to be issued against people suspected of involvement in terrorism, such as house arrest and restrictions on movement, in lieu of administrative detention and without discriminating between British citizens and foreign nationals.A similar controversy arose in Israel in 2005 regarding an amendment to the Criminal Procedure (Powers of Enforcement - Arrest) Law that allowed taking a hard line in the arrest procedures and rights granted to people suspected of security offenses, most of involvement in terrorism. The amendment was initially established because it did not apply to Israeli citizens or residents. See the draft of the Criminal Procedure Law (Powers of Enforcement - Arrest) (Detainee who is a Non-resident, Suspected of a Criminal Offense -- Emergency Order), 5766-2005. Following strong criticism of this draft law, the Justice Ministry refrained from including in it discrimination on the basis of nationality. See Criminal Procedure (Detainees Suspected of a Security Offense) Law (Emergency Order), 5766-2006. Last year, the Court of the House of Lords annulled a number of restraining orders issued on the basis of this law because they compromised freedoms too severely and because of defects in the process of issuing the orders.
It is important to emphasize that even though the British have for the time being abandoned the administrative arrest of terror suspects, the powers of arrest set forth in the Terrorism Act of 2000 remain in effect. Moreover, the terms of arrest stated in the Terrorism Act of 2000 were extended in 2003 from seven days to 14 days, and in 2006 to 28 days. Those steps provoked fierce debate in Britain between those demanding harsher steps against terrorism and those who claim that such measures are unnecessary and that they sacrifice individual rights on the altar of national security.
Another development in anti-terrorism legislation occurred two years ago with the adoption of the Terrorism Act of 2006 by the British Parliament. This law made a number of amendments to the Terrorism Act of 2000 and added new offenses to the list of offenses linked to terrorism, including the prohibition of the incitement of acts of terrorism and of the dissemination of publications linked to terrorism (Sections 1-4), the prohibition of preparations for acts of terrorism and of the training of terrorists (Sections 5-8), the prohibition of offenses connected to the possession of radioactive and nuclear substances and their use (Sections 9-12); it also added harsher sentences for committing acts linked to terrorism (Sections 13-15). On the basis of the new law, the first British citizen, Samina Malik, was convicted for the possession of recordings that could have been used to commit acts of terrorism in November 2007.
The latest developments in the anti-terrorism legislation occurred very recently; in 2008, the authors of the draft of a new law called the Counter-Terrorism Bill of 2008, aim to grant the British security forces broader powers to fight terrorism. Its main provisions include the extension of the detention of people suspected of involvement in terrorism to 42 days, as well as a provision that seeks to facilitate the gathering of information related to terrorism by the British security forces. However, many changes may yet be made to the bill before its final version is agreed upon because of the great controversy that arose in the British Parliament regarding the compromise of human rights that may result from the powers provided by it.
Following the 9/11 terrorist attacks, the United States adopted stringent measures to fight terrorism by passing new legislation and amending existing legislation. The main act of legislation against terrorism, the US Patriot Act, was passed by Congress on October 26. This comprehensive act of legislation substantially revised dozens of existing American laws to allow the US security agencies to take invasive measures, including invasive powers of search and surveillance, detention, and seizure of property and its confiscation, which previously had not been allowed because they compromised human rights and basic freedoms.
For example, Section 412 of the US Patriot Act amended the Immigration and Nationality Act, adding a provision on the detention of suspected terrorists. This provision empowers the US Attorney General to order the arrest of foreign nationals when there is a reasonable basis to suspect them of involvement in terrorism or other activities that constitute a danger to the national security of the United States. The period of arrest on these grounds was originally restricted to seven days, during which the Attorney General had to decide whether deportation procedures should continue or criminal measures should be taken against the detainee; otherwise, the suspect had to be released from detention. However, the new provision allows the administrative detention of a person, even in cases where their deportation from the United States does not appear imminent, for a period of six months at a time if the Attorney General thinks the release of that person would endanger US national security, public safety or the safety of any individual. It is important to note that as of today that provision of the law has not been used to detain suspected terrorists.
Besides the US Patriot Act, the American Administration acted to pass new legislation to allow the detention of hundreds of Taliban fighters and members of Al-Qaeda captured during the fighting in Afghanistan and their prosecution for war crimes. On November 13, 2001, the US President issued a presidential order, Military Order Number One, authorizing the arrest of members of Al-Qaeda and anyone who took part in, gave shelter to, abetted or conspired to commit acts of international terrorism, as well as their prosecution in special military tribunals created for that purpose. On the basis of this order, the United States arrested hundreds of people during the fighting in Afghanistan. The vast majority of them were Taliban fighters and members of Al-Qaeda. These detainees were secretly taken to a U.S. Navy detention facility in Guantánamo Bay, Cuba, and detained there for an unlimited period of time, without judicial review and without the possibility of meeting and consulting a lawyer. The US Administration claims that the Guantánamo detainees are "illegal enemy combatants" who, like the illegal combatants detained by law in Israel, are not entitled to the status of POWs or to the protections set forth in the American Constitution and criminal law (or Israeli law) and, therefore, may be held in administrative detention without trial for an unlimited period of time.
One of the controversial issues in this matter is the question of whether the Guantánamo detainees are entitled to petition the US Federal Courts for writs of habeas corpus to review the legality of their arrest. In June 2004, the Supreme Court ruled in the case of Rasul v. Bush that the US Federal Courts are empowered to hear habeas corpus petitions submitted by foreign nationals, who have been declared "illegal enemy combatants" and have been detained in Guantánamo. In response to the ruling, the US Administration, which did not want the Guantánamo detainees to petition the US Federal Courts for writs of habeas corpus, established the Combatant Status Review Tribunals (CSRT) - military tribunals whose only purpose is to review the classification of Guantánamo detainees as "illegal enemy combatants." These tribunals serve as a substitute for judicial review by the US Federal Courts.
The reason for this is clear: as opposed to the federal court procedure in the US, the CSRT procedure has no significant procedural protections. Among other things, detainees are denied access to a lawyer and to the evidence in the file that is classified as confidential; the Administration is allowed to present evidence that is not admissible in ordinary criminal procedure; including evidence obtained by torture or other means of coercion; and the detainees are denied the right to cross-examine the witnesses on behalf of the authorities appearing in the case. Moreover, in 2005, Congress passed a new law, The Detainee Treatment Act of 2005 (DTA), that denies US Federal Courts the power to hear petitions submitted by Guantánamo detainees. The restrictions imposed by the DTA are indirectly discussed in the Hamdan v. Rumsfeld verdict, in which the US Supreme Court delivered a majority ruling that the provisions of the DTA do not preclude US Federal Courts from hearing habeas corpus petitions that were pending when the law was passed in December 2005. The justices also ruled that the procedure conducted in the special military tribunals created by President Bush in 2001 to prosecute defendants charged with terrorism offenses is not in keeping with US law and international law.
In response to the ruling, Congress passed that the Military Commissions Act of 2006 (MCA), which created new courts to prosecute people accused of committing acts of terrorism. Section 7 of the law stated that the US Federal Courts do not have jurisdiction in pending habeas corpus petitions submitted by Guantánamo detainees. But in a precedent setting ruling (Boumediene v. Bush) on June 12, 2008, US Supreme Court justices handed down a majority ruling that the Guantánamo detainees are entitled to petition the US Federal Courts to release them from detention and, therefore, Section 7 of the MCA must be rescinded because it violates that right and is contrary to the U.S. Constitution. This seems to have put that dispute to rest.
Another controversial issue among the American public is that of holding American citizens in administrative detention because of their classification as "illegal combatants." This issue was brought to the Supreme Court in the case of Hamdi v. Rumsfeld. In this case, the court declared a majority ruling that the President is allowed to order the arrest of an American citizen as an "illegal combatant." However, the majority of justices ruled that Hamdi, an American citizen, is constitutionally entitled to due process as part of the procedure to establish his status as an "illegal combatant," which means he is entitled to receive information regarding the factual basis of his arrest, to have access to a lawyer and to be given the possibility of effectively challenging the legality of his detention before a neutral party.
Another instance brought before the US Federal Courts concerned the legality of the administrative detention of José Padilla, an American citizen arrested in 2002 on US soil (as opposed to Hamdi, who was arrested during the fighting in Afghanistan) as an "illegal combatant." He was held at a military base for three years on suspicion of involvement in terrorism, without being charged. In September 2005, the court ruled following the Hamdi V. Rumsfeld precedent that the President is empowered to keep Padilla in administrative detention without trial, since it was proven that he acted against US forces in Afghanistan. However, the issue of the legality of the detention of American citizens who are considered "illegal combatants" and who are detained on US soil has not been settled because the US Supreme Court has not yet ruled on this matter.
Despite the geographical distance and the different circumstances that led the United States and Britain to act to pass anti-terrorism legislation, there are similarities between them. In both countries, the acts of anti-terrorism legislation that were adopted give their security agencies broad powers in the name of the war on terror by permitting invasive measures such as investigation, surveillance, supervision, detention, and seizure and confiscation of property, as well as by establishing special offenses linked to terrorist acts and unusually heavy punishments for them.
However, a significant difference between the anti-terrorism legislation adopted in the US and Britain should be pointed out. Unlike the United States (and Israel), Britain did not pass legislation allowing the detention of suspected terrorists as "illegal combatants." As of today, Britain considers suspected terrorists to be criminals against which administrative and criminal measures should be taken by virtue of the special anti-terrorism legislation that is outside of ordinary criminal law; whereas the United States (and Israel) considers suspected terrorists who were captured during fighting to be "illegal combatants," who are not entitled to the status of prisoners of war and the protections set forth in ordinary criminal law.
Finally, both in the United States and in Britain, the anti-terrorism legislation that was adopted has led to widespread public controversy because it often denies the fundamental protections provided by constitutional and criminal law. The opponents of the legislation even claim that the risk it poses to the basic values on which democracy is based in those countries is far greater than the risk of the terrorism threatening them. This argument should not be taken lightly. Such arguments are also frequently heard in Israel concerning the anti-terrorism legislation passed by the Knesset. These arguments should therefore be reviewed carefully to guarantee that anti-terrorism legislation both in Israel and in other democratic countries does not unnecessarily compromise human rights and basic freedoms.
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