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For Steven Greer's article on anti-terrorism law, there were many distinctions he picked out when taking into account the background, and other facts on the terrorism organisation. He contrasts between the threat before 9/11 and after 9/11 using Northern Ireland and Al-Qaeda as his examples. He states how Northern Ireland were subjected to the diplock process, characterised by non-jury courts, extended police and army powers to stop and question, stop and search, search and seize, and arrest and detain for up to seven days without charge. He emphasizes and distinguishes how most of the people arrested under this diplock process, three quarter of them were released. And convictions mainly based on largely based on confessions extracted in police interrogation or obtained as a result of evidence provided by supergrasses. Mr Greer distinguishes the "shoot to kill" policy, whereby it was introduced before 9/11. There is evidence that elements in the British security agencies colluded in murder with Loyalist paramilitaries due to this policy. Another distinguish is the seven day policy, Mr Greer points out how before 9/11, the united kingdom had seven-day detention provision did not violate the Convention because there were grounds for maintaining that the conflict in Northern Ireland amounted to a " public emergency threatening the life of the nation". In 1998 human rights act was introduced whereby it empowers UK courts to consider whether anti-terrorist detention provisions are compatible with the Convention and, if necessary, to force a government rethink as dramatically occurred in the Belmarsh case in 2004.
For post 9/11, Mr Greer using the two prime examples, to outline how each of them operates differently and how much of a risk they are to the UK. He states how some people perceive terrorism as too broad "the long war" where it is more of a "struggle against terrorism" with "terrorism" in the UK context meaning something narrower than the definition, namely "violent threats to a liberal democratic state and society" .He distinguishes many factors which when putting into account make the pre 9/11 terrorism seem minor implications. First, he distinguishes post 9/11 how the IRA embraced a modern, secular, nationalist ideology, whereas AQT terrorists invoke Islamism, a political ideology which relies heavily on Islam, a pre-modern religion. Consequences of this, Muslims in the United Kingdom and elsewhere would repudiate as inauthentic and illegitimate. The second difference is that the IRA's violence had limited territorial objective to enhance the political power of the nationalist minority in the north of Ireland. It was never intended to destroy a civilization or a way of life. Indeed the way of life. Post 9/11 threats to the UK Greer points out how terrorist organisations such as AQT their goals were much more ambitious and were clearly linked to a conflict over control of territory in the Middle East and not Britain. Greer also points out British jihadists are motivated by a sense of injustice stemming from disadvantage and discrimination suffered by British Muslims. In contrast with pre 9/11 and post 9/11 the old-fashioned nationalism of the IRA is quite different to Islamist terrorism objective to destroy the West as a "decadent" and "ungodly" anti-civilization. Another distinction that Steven Greer uses is the terrorism's fire power. He shows how pre 9/11 the IRA never used suicide bombs, which in contrast to post 9/11 is the favoured method of AQT terrorism. The IRA always had in mind to minimise civilian casualties whereas post 9/11 AQT terrorism seeks to maximise civilian casualties. Steven Greer also outlines how pre 9/11 the IRA remained a centrally-controlled and hierarchical paramilitary organisation. Whilst AQT organisations, very loosely structured with no central command other than the inspiration provided by charismatic and highly independent leaders. In the sense outlined, the IRA was a terrorist organisation and Al Qaeda type (AQT) associations are terrorist organisations. But there the similarities end. There are nearly a dozen much more significant differences between post 9/11 and pre 9/11 threats facing the UK. Mr Greer's distinctions are very clear to where each terrorist organisation differs for instance when it comes down to casualties, pre 9/11 the IRA would try to minimise the casualties and be effective but post 9/11 the more casualties the better for AQT. It may be that the law has not been so harsh on anti-terrorism that the boundaries on casualties have increased. During the years the fire power and technology has become more advanced such as bombs, effectively to deter people or stop them security measures and more harsh laws have been placed. This could explain the 28 day period they can derogate them for, in order to have enough time to gather evidence. Relatively the key objective of antiterrorist laws must now be to contribute significantly to the prevention of attacks and to prosecute those responsible before they occur, since the risk has tripled from pre 9/11. To be effective as possible when risks such as this are at large, gathering accurate intelligence and responding to it appropriately is crucial relating back to pre-9/11 police confessions amount to arrests is not enough. However misuse of these powers could lead to inaccurate evidence such as the insensitive use of stop and question and stop and search powers can provoke anger which, in turn, can cause more damage to intelligence-gathering than the information produced. The use of arrest and detention powers for intelligence-gathering purposes is also incompatible with the European Convention. So by law Human rights should overrule the arrest and derogation powers.
What did the Law Lords rule in relation to the provisions under the Anti-Terrorism, Crime & Security Act, 2001 concerning 'indefinite detention, without charge, of foreign nationals'? Where are we now in terms of 'extraordinary' powers of detention in cases of suspected terrorism?
The Anti-Terrorism, Crime & Security Act gave the Home Secretary power to verify a foreign national as a 'suspected international terrorist' (s. 21). The House of Lords Judicial Committee on December 2004 concluded with their judgement on the compatibility of the Part 4 powers with the (ECHR). The Human Rights 1998 (Designated Derogation) Order 2001 was crushed and section 23 of the ATCSA was affirmed to be incompatible with Articles 5 (right to liberty) and 14 (freedom from discrimination) of the ECHR.
The House of Lords considered Part 4 powers were discriminatory. Their reasoning was it only applied to foreign nationals and also acknowledged that they were not proportionate to threats the UK faced was facing on terrorism. From this action, the Government replaced the Part 4 powers with a new system of Control Orders. Control Orders would be subjected to all suspected terrorist, whether him or her being a UK national or not. Also whatever the aim of his/her terrorist activity is.
In cases of extraordinary powers on suspected terrorism, control orders allows the authorities to impose conditions from prohibitions on accessing items or any service, restrictions on being with particular individuals, or restrictions on movement or curfews. The Home Secretary has the power to make a control order based on any intelligence provided. On suspected terrorism, Control Orders could be varied and controls changed if the individual poses a larger threat. These types of powers may be up to certain strict periods, as Control Orders will be time limited and can be set up to 12 months at a time allowing them to be renewable thereafter. The powers are set strict enough to when breach of a condition, it would be a criminal offence most likely of imprisonment.
In the light of what you have read, do you consider that a period of up to 28 days' detention without charge of those suspected of terrorism is reconcilable with Article 5, ECHR and with the ECtHR's jurisprudence on extended detention periods in such cases?
In light of what I have read, 28 days is too much to keep a person in pre-trial detention on charges of suspected terrorism. The 2006 Terrorism act , I doubt would have considered beforehand putting a person away for 28 days what would the damage be to the mental health, personal and family relationships and employment of the person detained for periods as long as this. Putting people under long detention periods by the police may amount to a confess at the end, but might it is also well known that detention rules such as these can produce false confessions which, in their turn, can lead to miscarriages of justice. Steven Greer outlined this prime principle with his example of the evidence gathered on Northern Ireland indicated that most confessions in such processes are, in fact, made in the first 48 hours. But that was pre 9/11 however now the risks are much bigger several days would seem the best option. In contrast with Article5 (2), a person shall be informed "promptly" of the reasons for the arrest and any charge against them and that they shall be brought "promptly" before a judge (Art.5 (3)). The 28-day pre-charge detention period would, therefore, appear to constitute a violation of human rights. In a more logic instances, factors should be considered and outlined on whether this person should be detained for longer, for example if the person is a potential threat to community and has previous charges of providence false statements or evidence. In any trial before on suspected terrorism it should be what characteristics does the current terrorist threat have, which would be able to extended power of pre-charge detention?
The Government originally advocated a 90-day period on the grounds that much more time is required, is too extreme. This in most instances should violate the rights of an individual person. 28 days is still to be considered under the Convention test let alone 90 days or 42. In comparison other western democracy i.e. the USA, it is quite astonishing that the United Kingdom's 28-day has the longest pre-charge detention period. Under U.S. Federal law, the maximum period of pre-charge detention is 48 hours. This limit comes from the Fourth Amendment to the US Constitution.
Overall, detaining people for 28 days without charge inevitably leads to injustice, and undermines our ability to fight terrorism. It also affects the British tradition of liberty and justice.
Liberty's Director, Shami Chakrabarti, has consistently argued against extended periods of detention in suspected terrorism cases and is critical of reliance on the state's Article 15 power to derogate (enabling it to suspend the protection of the ECHR): "It simply seems to me that a 'state of public emergency' of indefinite length is as dangerous as the unending 'war on terror' which allows the murderer to call himself a soldier. A limitless state of emergency is a contradiction in terms. It is no longer a temporary departure from the proper and normal order of society for as short a period as possible in order to re-establish means of existence, government and law. It is instead a new state of being. A state of constitutional poverty without the ethical framework that we most need in times of greatest difficulty." (last page of her article, "Terrorism and the Rule of Law"). Is she right?
Liberty's Director, Shami Chakrabarti, has regularly argued against extended periods of detention (imprisonment) in suspected terrorism cases and is critical of (confidence) reliance on the state's Article 15 power to derogate (take away) (enabling it to suspend the protection of the ECHR): "It simply seems to me that a 'state of public emergency' of indefinite (unfixed) length is as dangerous as the (endless) unending 'war on terror' which allows the murderer to call himself a soldier. A limitless (unlimited) state of emergency is a contradiction (conflict) in terms. It is no longer a temporary departure (retreat) from the proper and normal order of society for as short a period as possible in order to re-establish (re-build) means of existence, government and law. It is instead a new state of being. A state of constitutional poverty (shortage) without the ethical (moral) framework (structure/background) that we most need in times of greatest difficulty." (last page of her article, "Terrorism and the Rule of Law"). Is she right?
Prior to shami chakrabati principle on how an unlimited period of public emergency is the same as an endless war on terror. Being able to derogate our rights on detention and on other rights, retreats us from the proper normal society we are living in today. Laws such as these will never be able to allow us return to normal but instead lead us into a state of a constituinoal poverty without the moral structure. Governments at a time like this would instead of focusing on how to prevent any terrorisim from happeneing, split our society up based on our views rather than our actions. As lod hoff man stated " the real to the life of the nation comes not from terrorisim, but from laws such as these". An example can be the new-anti terror control orders surely the are likely to breach Article 6. Not surprising as to some quite significant interference with liberty without charge or trial. Another prime example being the government trying to extend the pre - trial detention to ninety days. Surely under Article 5, demands prompts information on reasons of your arrest and any charges against you. And this is only for terror supects. Picture how ninety days in prison and being released without charge, not only would he be disgusted with the britsh laws but other people would stay clear of the police when it comes to co-operating with some useful inside information on the latest terrorist activity. Even so what with chakarbati giving some in sight on the rule of law , in todays news there are various news articles on how britian has been torturing our own british suspects in camps such as guantamano bay and Pakistan. The British have paid whatever costs to use all means possible to access any information relating to terrorists activity.