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Terrorism and Individual Liberty: the Responsibilities of the State Attorney General's speech to International Bar Association Annual http://www.asianlegalonline.com/asia/detail_article.cfm?articleID=1174 A speech by the UK's Attorney-General Lord Goldsmith at the recent IBA conference in San Francisco. In the speech, entitled "Terrorism and Individual Liberty: the Responsibilities of the State", Lord Goldsmith set out an argument for governments to protect national security only in ways that are compatible with maintaining the fundamental rights of individuals - even those accused of terrorist attacks. And lawyers, he said, "have the influence and the expertise to make a vital contribution" to the process. Here, Lord Goldsmith shares his views with ALB readers It is a privilege to have been invited to open this showcase session on Combating Terrorism: the challenge facing States at the 2003 conference of the International Bar Association. The IBA describes itself as the global voice of the legal profession. I believe it has just cause to do so. Over 120 different countries are represented on its Councils, from every Continent and from every legal tradition. Through its individual and collective membership it can claim to speak for millions of lawyers round the world. It can be a powerful spokesman for the interests of justice. So this is a very important forum in which to debate some of the issues which the horror of modern terrorism has thrown up such as the way we seek to combat terrorism and to administer justice. But as well as being a speaker, the IBA is also a doer . Its work in human rights, in training of judges and lawyers, in supporting bar associations, in helping to create effective justice systems in which the public can have confidence, in supporting the availability of access to justice is much to be congratulated. And I am happy to pay tribute to it today. I know that the Association has been working on a major study of the issues of combating terrorism. I do not know if I will agree with all of it, or even most of it, but I am sure it will be an important contribution. This is the sort of work which demolishes the myth that lawyers are only concerned for their own interests and their own incomes. I was proud to have been associated with some of this work before I was appointed to my present post. So it is also a personal pleasure to be here with you. I note that the Association, under the guidance of its outstanding officers and Executive staff has gone from strength to strength since I left it - I hope there is no doctrine of cause and effect here. I want to start my discussion of the enormously important issues this topic throws up by quoting from a judgement of an English court considering an extradition case: "..the party with whom the accused is identified by the evidence, and by his own voluntary statement,...is the enemy of all Governments. Their efforts are directed primarily against the general body of citizens. They may, secondarily and incidentally, commit offences against some particular Government; but [their] offences are mainly directed against private citizens." Words from a case concerning an Al Qaeda member? No. although they could very well have been. They actually come from a case in 1894 concerning the extradition of an anarchist accused of bombing a French café and army barracks. So the problem of combating terrorism cannot be said to be a wholly new one. There have been other occasions too when national emergencies have caused governments to take special and extraordinary measures to deal with the extraordinary threats which confront the people. And there are other peoples who marvelled that some only discovered the scourge of terrorism in the evil destruction of the twin towers, having experienced themselves terrorist outrages over many years. It would be invidious to single them out. In the last world war many of our countries considered it necessary to pass special measures. Even Abraham Lincoln suspended habeas corpus during the Civil War, had elected legislators suspected of enemy sympathies imprisoned and newspapers banned. And these occasions have engendered the same sorts of debates which many are having now, and which this session will no doubt engender: the conflict between civil liberties and protection of the public safety. In relation to the suspension of habeas corpus, Lincoln asked whether "all the laws but one [are] to go unexecuted and the government itself to go to pieces lest that one be violated." So, as Supreme Court Justice Stephen Breyer said at a lecture delivered in New York to a conference of world city bar leaders less than a month after 9/11, the dilemma is clear. But if the issue of terrorism is not new, if the dilemma Lincoln noted, is not new, then still there are challenges today which we have not faced before. It is said that the world changed on September 11th. I certainly believe that the landscape of terrorism changed. I would single out these features.
The first is the scale and nature of the operations. This impact was not simply in terms of the numbers of people killed, or the enormous economic damage inflicted - although these were unprecedented; as an illustration the number of British citizens who lost their lives, at least 65, was in itself the largest single terrorist loss that my country had suffered. And the problem is by no means solved. Since 9/11 over 300 innocent people have been killed in al-Qaeda linked atrocities in Bali, Mombasa, in Casablanca, and in Riyadh, Saudi Arabia as well as other grave incidents in Russia, Israel and India. It was also the means and the planning and the determination. The world had never seen anything remotely approaching this before. Attacks which were designed to cause enormous civilian casualties - with no attempt apparently to weigh against that the political cost to the terrorists' aims of such massive loss of innocent life. And this callous determination seems even more shocking, even more terrifying as the terrorists do not even appear to have any rationally negotiable objectives or aims; they are not, for example, agents of a political cause trying to wrest control of their own country. The second feature, and perhaps the most frightening of all - and one of the most pertinent to the issues facing governments - is the international nature of such terrorism. It is now clear that it is organised and executed through an international network of cells and different organisations able to call on help and assistance from many determined people in different countries. The third, and it is strongly connected with the globalisation of terror, are the challenges of modern technology. Not so much the use of commercial airlines as flying bombs. But rather the communications technology which means that no longer need a conspiracy require the plotters sitting together in a darkened cellar where undercover intelligence might enable them to be overheard and apprehended. But plots by internet and cellphone, by satellite and by coded messages on websites. Against that background, and with the experience of one of the Ministers in the United Kingdom who has had to consider and help fashion our response to the events of 9/11, I want to deal with three topics this morning which relate to meeting these challenges: how we should confront the difficult question of striking the balance between protection of our security and the protection of fundamental rights and freedoms; what steps we have taken in the UK, and where lawyers fit into these issues. These issues overlap so I will not attempt to deal with them entirely sequentially. Before I do, I must make one disclaimer. I do not intend to speak this morning or to answer questions if asked specifically on the position of detainees at Guantanamo Bay. It is well known that the UK Government has expressed serious reservations to our good friends and allies, the USA on the position of the Military Commissions which are intended to try at least certain of those detained there. It is also well known that I personally have been conducting on behalf of the UK Government negotiations concerning the future of the British nationals detained in Guantanomo Bay. Our objective in these negotiations is, as we have repeatedly said, to ensure that, if prosecuted, the British detainees are assured of fair trials wherever they take place and also to express the UK Government's strong opposition to the death penalty being used. Although progress has been made, some of which I have been able to announce publicly, such as the clear assurance of the US that the death penalty would not be sought in respect of the detainees presently designated for the Military Commission process, and assurances in relation to the use of civilian lawyers, there remain serious issues to seek to resolve. As the negotiations are continuing - indeed but for Hurricane Isabelle I would have been travelling to Washington tomorrow to continue them though it will still be a little time before a final conclusion one way or another is reached, I do not regard it as appropriate to give a running commentary on these negotiations. That is not how I at least conduct negotiations.
Our starting point is uncontroversial. The State has dual responsibilities: to protect its citizens and their property from terrorist attack and to guarantee the fundamental rights of those within its jurisdiction. But after that uncontroversial start we soon get into choppier waters. How do we balance these two objectives which will often conflict? I do not believe this can be a simple utilitarian calculation of balancing the right to security of the many against the legal rights of the few. That would be to ignore the values on which our democratic society is built. For in the war on terrorism we are fighting for more than the safety of our citizens, though that it a huge objective for us. We are fighting for the preservation of our democratic way of life, our right to freedom of thought and expression and our commitment to the rule of law; for the liberties which have been hard won over the centuries and which we hold dear. These are the very liberties and values which the terrorists seek to destroy, not only through mass murder and destruction of property but also through the climate of fear that their actions create, and are intended to create, and which threaten those values and our way of life. Some would not accept this. It is a bitter pill to swallow for those who have seen and experienced the devastation that results from terrorist outrages to see systems established to protect the legal rights of those they believe responsible for them. And those who are responsible, let it be admitted, do not have a single shred of concern for the legal or human rights of those they would kill, maim and terrorise. So why should we care, some would say, about theirs? But the rule of law is the heart of our democratic system. I hope it will not be too presumptuous standing here on American soil to pay tribute to the greatness of the American contribution to the rule of law. Whilst my country, and others in the common law world, share a common bond dating back to Magna Carta, there is a special place for the rule of law in the American spirit. If I may quote again a Supreme Court Justice, this time Anthony Kennedy: "The American Constitutional system was inspired by fundamental confidence in law as a liberating force... When we declared independence, we conceived of our cause, we found our identity, we justified our rebellion in legal terms." . It is this same rule of law which means that these people too must be protected by the law. This does not mean that there is not a balance to be struck. It is a hard balance and extraordinary times will justify it being struck in different ways. Surely, for example, we should be prepared to accept more intrusion into our personal lives through more sharing of information between public agencies if that is needed to help detect and prevent more terrorist attacks or bring to justice those responsible? And extraordinary events will lead to derogations from the practices we observe in times of peace and tranquility. This right is recognised, for example, by the European Convention on Human Rights, now the bedrock of human rights protection in the UK, which permits derogations from some fundamental rights in times of emergency. But there remain certain rights which will be non negotiable. There are some - for examples the right to life, the prohibition on torture, on slavery. Others such as the presumption of innocence, the right to a fair trial by an independent and impartial tribunal established by law, where we cannot compromise on the principles, even if we may recognise that there may sometimes be a need to guarantee these principles in new or different ways. We cannot allow our long established and hard won system of justice and of liberty to be swept away in the aftershock of a suicide bomb. Otherwise the terrorists will have robbed us of our freedoms and will have won. So those suspected of being terrorists are not outside the law, nor do they forfeit their fundamental rights by virtue of that fact. The result may be to put limits on actions which would be in the interests of the many. President Barak of the Israeli Supreme Court expressed this idea as follows: "This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties." So there is a place for debate about the proper limits of action and whether Government has gone too far. But too often the criticism of Government action in relation to terrorism does not get beyond rhetoric. It does not recognise that new challenges must be faced. While the terrorist does not forfeit his fundamental rights, the law does recognise that those rights can be restricted or derogated from in particular circumstances. Rights are not only one way. It is not only the rights of suspected persons which are important. The rights and liberties of other citizens are important too. Let us not forget that terrorism, by its methods and aims, has the potential to render nugatory all the individual rights which we all hold so dear. The Universal Declaration of Human Rights, the aspirational document from which so many other human rights instruments stem, itself in Article 29 expressly recognises the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others. This is the position under the European Convention on Human Rights too. As Lord Bingham stated in a judgment of the Privy Council "Judicial recognition and assertion of human rights defined in the Convention is not a substitute for the process of democratic government but a complement to them...The [European] Court has ... recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention." In order to ensure that we can effectively combat terrorism, and defend the rights of society, we need to be flexible and imaginative in our approach to legal process and recognise that some restriction on fundamental rights may well be required. In the UK we have done this in relation to the detention of certain foreign nationals. But in making these arrangements we have I believe protected these rights and so far - one always has to say so far with the Courts - what we have done has been upheld by our courts which have carefully scrutinised what we have done. But I want at this point to make two points. First, any restrictions on fundamental rights must be imposed in accordance with the rule of law. And second, while we must be flexible and be prepared to countenance some limitation of fundamental rights where properly justified, there are certain principles on which there can be no compromise. Here, and again I shall illustrate this point, by reference to the UK anti-terrorist legislation, the law has an important role. It is, in the first instance for Governments to assess the need for action. It is their responsibility to protect the security of the people. They are in the best position to judge the nature of the threat; they have sources of information denied to others and which cannot be shared. And Government has also, as one of our senior judges, Lord Hoffman has made clear, the democratic accountability to make these decisions which judges lack. But that does not mean that the courts should abdicate all responsibility for these areas. Whilst paying proper respect to the role of the democratically elected bodies of Government and its decisions, the Courts will act to scrutinize the lawfulness of Government action, as our Lord Chief Justice Lord Woolf has described it, retaining their supervisory role to protect fundamental freedoms.
I turn then to some of the key measures taken in the UK. This is not of course the first time the UK has had to confront these issues, and we had in the past enacted legislation, some temporary to deal with the scourge of terrorism. But in the aftermath of September 11, and faced with a new and urgent threat, we considered it essential to pass new laws in the the Anti-Terrorism, Crime and Security Act 2001. This bolsters security in the United Kingdom, for example, by providing law enforcement agencies with vital information to target and track terrorists by requiring carriers to provide information about passengers and freight, and by enabling telecom companies and internet providers to retain data - not content - that can be accessed under existing legislation for terrorist or criminal investigations; by imposing tougher penalties for people seeking to exploit the events of September 11, for example, by committing offences motivated by hatred of particular religious groups or by perpetrating hoaxes; and by cutting off terrorists from their funds, through account monitoring, asset freezing and cash seizures as well disclosures of information from financial institutions. We also enacted the SIAC measures. These relate to the treatment of certain foreign nationals, who have come voluntarily to the UK but have no immigration right to remain and who are suspected of involvement in terrorism and pose a threat to national security. In relation to these persons we had a considerable problem. Under our immigration laws we have the right to deport them because they have no right to be in the country; but because of international obligations, notably under the European Convention of Human Rights, now part of our domestic law, we cannot deport them to a country where they would face death, torture or inhuman and degrading treatment. We are content for them to go; they have no right to be here but we cannot force them to go because of concern for their own human rights. So we were faced with a choice: either to leave them to roam free in the country or to detain them unless and until they voluntarily leave the country. We considered the first course gave rise to an unacceptable risk, given the heightened threats since 11 September and so we legislated to provide for detention. Under these new powers, 15 people have so far been detained, two of whom, having been detained, have in fact voluntarily left the UK. Taking this step involved our derogating to a limited extent from our obligations in accordance with our right to do so under the European Convention. And, as you will hear, this derogation has so far been upheld by our courts. But in taking and using these powers, our commitment to the
rule of law and to the values of our democracy remain. This has
not been a step we have taken lightly. The powers themselves
must be renewed annually by Parliament. And there are important
safeguards under the Act, of which the most important in this
context is the right of full judicial scrutiny by an independent
judicial body presided over by a senior judge. We have used for
this purpose a body known as the Special Immigration Appeals
Commission, or SIAC - a body already used, although some adaptation
was needed, in a special category of immigration appeals in relation
to people posing a national security risk. This body is able
to hear part of the evidence in private. This enables it to deal
with secret intelligence information, the disclosure of which
might endanger the life of an undercover source or compromise,
through the revelation of security methods, our ability to get
early warning of impending threats without any security risk. There is thus the fullest judicial scrutiny, adapted only where essential to do so because of our other legitimate concerns not to compromise the safety of our agents or of the British people. Our commitment to the rule of law, in which great care is taken to ensure that such powers are exercised lawfully and any question to that lawfulness can be tested effectively before the courts, is, I suggest, evident. The exercise and existence of the new powers have already been tested in our courts. The Commission were satisfied that the UK faces a national emergency and that the provisions in the Anti-Terrorism Crime and Security Act 2001 enabling the detention of suspected terrorists were justified and lawful. They concluded that "The United Kingdom is a prime target, second only to the USA; and the history of events both before and after September 11 2001, as well as on that fateful day, does show that if one attack were to take place, it could well occur without warning and be on such a scale as to threaten the life of the nation". This decision was appealed to the Court of Appeal presided over by the Lord Chief Justice which upheld this decision of SIAC, also overturning SIAC's decision on the one point on which it had found against the Government. That point could be characterised as saying that the powers were not wide enough. But today is not the occasion to explore the detail of this argument. The point that I would emphasise is that these powers are immigration powers under which the people detained remain free to leave (and some have done so), they were debated at length by our sovereign Parliament; they are temporary powers which must be reviewed annually by the public's elected representatives; the detainees have full access to their legal representatives; and the powers are subject to close scrutiny by robust and independent judges and appealable up to the highest court in the land - the case is due to be heard by our House of Lords - and indeed beyond, as the European Court of Human Rights in Strasbourg may be involved too in due course. In the meantime having dealt with the principle of the powers, the courts are now dealing with the detail of the individual detainees, testing the detailed material against each. We expect a decision shortly. Parliament and the Government have the primary responsibility for defending our democracy and its values, and for protecting its citizens from the threat of terrorist attack. However, it is entirely right and proper that, as a means of ensuring that Parliament and the Government have struck the correct balance between the rights of society as a whole and the rights of the individual, the courts should be able to review the lawfulness of Government action. As I have noted the Lord Chief Justice made clear in the derogation case itself, "the court retains its supervisory role". This ensures that the courts can review whether the action taken by Government to deal with the terrorist threat is proportionate and justified, and goes no further than is absolutely necessary to deal effectively with that threat. In the same case the Lord Chief Justice stated that he believed the additional protection afforded by the Human Rights Act in such cases was substantial. He added - "The unfortunate fact is that the emergency which the Government believes to exist justifies the taking of action which would not otherwise be acceptable. The ECHR recognises that there can be circumstances where action of this sort is justified. It is my conclusion here, as a matter of law, and that is what we are concerned with, that action is justified. The important point is that the courts are able to protect the rule of law." There is inevitably a delicate balance between Parliament and the executive on the one hand, and the judiciary, on the other, in this area. However, I sincerely believe that the legislative and constitutional framework in the UK enables effective action to be taken against the terrorist threat whilst still maintaining the rule of law. The measure we have taken to deal with foreign nationals suspected of being international terrorists is a concrete example of where the UK has shown imagination and flexibility with regard to legal process in order to address a difficult issue, without compromising either our respect for the rule of law or the right to a fair trial - on which there can be no compromise.
Inevitably my comments have been directed to the responsibilities of the State and how we in the UK, in conjunction with international and regional partners, are responding to the current threats we face. However, this is not the whole story. It is not only States which have responsibilities, but all members of society. And I would suggest that the legal profession has particular responsibilities. It is of course true that lawyers and judges have a responsibility to preserve their independence and integrity, in the case of lawyers, to act fearlessly in their client's best interest and to retain their professionalism whilst sections of the public and press may be calling for vengeance through the courts. But the obligations of the lawyers to society do not stop there. Lawyers have a valuable contribution to make in the effort to defeat terrorism. I know how influential lawyers, and the IBA in particular, are in my country. You know the influence you can wield in your own. One of the key areas for action against terrorism is concerted international action. I made the point before that one of the distinct and dangerous elements of terrorism is its international nature. This creates specials problems for law enforcement. There is not time today to explore all the areas where action is needed. But I will list some of the issues and some of the work needed to deal with them. Traditionally law enforcement has been based firmly at the national level. Law enforcement agencies have to operate within their own national systems and national laws. A terrorist may have contacts and collaborators in any number of countries. Even to obtain the evidence of people in each of those countries may present a major logistical problem for prosecutors. We must respect national boundaries and frontiers whilst the terrorists treat them with contempt. It is through international cooperation that we can hope to find an answer to this challenge. So we have agreed a European Joint Action Plan to deal with terrorism,
68 concrete actions were identified and agreed, which we are
now putting in place including to provide fast track extradition
and arrest warrant procedures, and new measures for the collection
and exchange of evidence and the freezing of assets, which
will revolutionize extradition and mutual recognition of judgments,
confiscation of assets and obtaining evidence in cross-border
cases. It is essential that lawyers engage constructively in the debates in all our countries as to how to respond to the current threats. For example, it is lawyers who experience the practical difficulties in seeking mutual recognition of judgments or in seeking to use evidence from a different jurisdiction. This practical understanding of the limitations in current arrangements, coupled with the ability and knowledge to identify workable solutions would be of tremendous assistance in the re-shaping of international co-operation. I urge you not to let any "protectionism" of national legal systems or belief that one system is to be preferred over another to frustrate the essential task of facilitating greater international co-operation. And I would call on you all to assist in this endeavour by bringing your expertise to bear on these important issues. I see this as a role to which the IBA would be exceptionally well suited, as well national Bar Associations. Furthermore, lawyers have obligations to society which they must discharge even while acting for a particular client. I have in mind particularly our attempts to deal effectively with the funding of terrorist atrocities. We are all aware of the simple fact that the terrorists' ability to carry out the kind of atrocities we have seen in recent years need money which if seized would significantly disrupt their operations. But the measures that the UN Resolutions have required and that we and others have put in place need the co-operation of those likely to be involved professionally in transactions related to terrorist funding. The legal profession has its part to play in this too. Lawyers have a responsibility to society to inform the appropriate regulatory authorities where they reasonably suspect that their advice is being sought for the purpose of furthering the financing of terrorism. There is nothing inconsistent in this with a lawyer's professional standards and ethics. In such cases, the greater duty is to society. I know that there is a concern about the money laundering regime and obligations to clients. But the surprising fact is that despite the volume of financial activity which goes through lawyers, only a tiny fraction, in the UK at least, of suspicious transaction reports come from them, and indeed from accountants. It has been said that motoring assistance organisations have submitted more suspicious transaction reports than accountants in some years. A very few lawyers may actively assist in criminal money laundering - we had one who has been imprisoned for 7 years - yet others may simply be allowing old and trusted clients to use their accounts on occasions "as a favour". They need now to be hard-nosed about this if we are to cut down this route for money laundering. I know the IBA is engaged in the debate on money laundering and in the debate about the legal response to terrorism, and I look forward to the publication of the Task Force report on terrorism. But it is time for the legal profession to move beyond simply reacting, often, I have to say, negatively, to the steps Government's are taking in this area to a position where you are constructively engaged in working with them in finding solutions. I firmly believe that lawyers have to shoulder these responsibilities with the same professionalism and commitment as their responsibilities in relation to independence and integrity.
Let me conclude. I started by referring to the dual responsibilities on Government: to protect its citizens from terrorist attack and to uphold fundamental rights for all in its jurisdiction. Meeting these dual responsibilities presents enormous challenges to Government. But the responsibilities do not fall only on Government - lawyers have their role to play as well. As lawyers you have the influence and the expertise to make a vital contribution to the response of States and the international community to terrorism. And the stakes could not be higher - loss of life, loss of liberty.
The UK Government is committed to taking all necessary steps
to protect its citizens. I am convinced that this can be done
compatibly with upholding the fundamental rights of all, including
those accused of committing terrorist acts. The goal of the terrorist
is not only to kill, maim and destroy but also to undermine our
societies. That aim is furthered if democratic Governments place
those suspected of terrorist crimes outside the law and compromise
on their fundamental principles. I am determined that the terrorists
will not gain such a victory. |
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