Law in Times of Crisis Part 5 ppt

sequencing and temporal distinctions 177 When originally enacted by the British parliament, the Civil Author- ities (Special Powers) Act (Northern Ireland) of 1922 leading to the creation of an emergency regime under which ‘‘the Government en- joyed powers similar to those current in time of martial law’’ 17 was meant to last for no more than one year. Its radical nature was best reflected in section 2(4), which provided that ‘‘If any person does any act of such nature as to be calculated to be prejudicial to the preser- vation of the peace or maintenance of order in Northern Ireland and not specifically provided for in the regulations, he shall be guilty of an offence against those regulations.’’ Indeed, the South African minister of justice was quoted at the time to say, referring to section 2(4), that he ‘‘would be willing to exchange all the [South African] legislation of that sort for one clause in the Northern Ireland Special Powers Act.’’ 18 The act was renewed annually until 1928, when it was extended for a five- year period. Subsequently, the act was made permanent. The story of the series of Prevention of Terrorism (Temporary Provisions) Acts (PTA) was much the same. Originally introduced in parliament in 1974, the PTA was amended in 1975 and 1983, and reenacted in 1984. In 1989, the PTA became a permanent part of the statute books of the United Kingdom. 19 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT), passed merely a month and a half after the traumatic events of September 11, 2001, greatly expanded the surveillance and investiga- tive powers of law enforcement agencies in the United States both in the context of collection of ‘‘foreign intelligence’’ information when there is probable cause that the target of surveillance is a foreign power or an agent of a foreign power, and access to communications in ordinary criminal investigations. 20 To alleviate concerns, a sunset provision was 17 Claire Palley, ‘‘The Evolution, Disintegration and Possible Reconstruction of the Northern Ireland Constitution” (1972) 1 Anglo-American Law Review 368 at 400. 18 Committee on the Administration of Justice, No Emergency, No Emergency Law: Emergency Legislation Related to Northern Ireland: The Case for Repeal (Belfast: CAJ, 1993), p. 6. 19 The PTA of 1989 and the Northern Ireland (Emergency Provisions) Act of 1996 have since been replaced by the Terrorism Act of 2000. A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law (13th edn, New York: Longman, 2003), p. 615; Clive Walker, The Prevention of Terrorism in British Law (2nd edn, Manchester: Manchester University Press, 1992), pp. 33 39; Joe Sim and Philip A. Thomas, ‘‘The Prevention of Terrorism Act: Normalising the Politics of Repression” (1983) 10 Journal of Law and Society 71. 20 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No. 107 56, 115 Stat. 272 (2001). 178 five degrees of separation incorporated into the act. This provision was scheduled to terminate on December 31, 2005 several of the act’s sections that enhanced search and electronic surveillance powers of law enforcement agencies. The idea was that such a provision would enable legislators to review carefully, re- moved from the pressures of the moment, whether the expanded powers were needed and how well they had been used (or abused) as well as to assess their effectiveness, and will give incentives to the administration to cooperate with legislative oversight efforts. 21 In its final report, the 9/11 Commission recommended that the bur- den of proof for showing that Congress should renew USA PATRIOT Act powers subject to sunset should be on the president, who must show that each power actually materially enhances security and that there is adequate supervision of the use of such powers to ensure that civil liberties are protected. 22 If the power is granted, the commission emphasized, there must be adequate guidelines and oversight to con- fine its use properly. The commission further stated: ‘‘Because of con- cerns regarding the shifting balance of power to the government, we think that a full and informed debate on the Patriot Act would be healthy.” 23 Once again, the familiar pattern of a temporary act (or, in this case, provisions thereof) becoming permanent was repeated. On July 21, 2005, the same day as the second round of terrorist attacks on London’s trans- portation system, the United States House of Representatives voted by a wide margin to extend indefinitely and make permanent practically all the provisions of the USA PATRIOT Act which have been subject to the sunset provision. 24 On July 29, 2005, the Senate voted unanimously to make permanent virtually all the main provisions of the act. This was made possible after several proposed changes to the act which would have expanded further the FBI powers under it to include the authority to demand records in terror investigations through administrative sub- poenas, without a judge’s order, and to have sole discretion in deciding whether to monitor the mail of terror suspects had been withdrawn. 21 Section 224 of the USA PATRIOT Act; Robert O’Harrow, Jr., ‘‘Six Weeks in Autumn,” Washington Post, October 27, 2002, p. W06. 22 ‘‘Final Report of the National Commission on Terrorist Attacks upon the United States (The 9/11 Commission Report)” (Washington: US GPO, 2004), available at http://www.gpoaccess.gov/911/index.html (last visited August 8, 2005), pp. 394 95. 23 Ibid., p. 394. 24 Glen Johnson, ‘‘House Votes to Extend Patriot Act, Democrats Voice Civil Liberties Concerns,” AP DataStream, July 22, 2005. sequencing and temporal distinctions 179 While the renewed legislation includes certain new restrictions on the government’s powers, it should also be noted that there are already in- dications that the USA PATRIOT Act is becoming the new normality and benchmark for further legislation with the intelligence community tak- ing its expanded powers and authorities under the act as the new norm and seeking to expand them further. 25 The advent of the ‘‘war on terrorism’’ led to further questions about the relationship between normalcy and exception in the face of a ‘‘war’’ that may well be endless. In a statement made on September 20, 2001, President Bush declared: Our enemy is a radical network of terrorists, and every government that supports them. Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated From this day forward, any nation that continues to harbor or support terrorism will be regarded by the US as a hostile regime. 26 The main traditional feature of the international legal system is its dichotomized division between times of peace and wartime, with the for- mer constituting the norm and the latter the exception to that norm. Surrender, armistice agreements, and peace agreements serve formally to separate war from peace and define clearly the end of one (war) and the resumption of the other (peace). 27 Similarly, formal declarations of war, although not required as a matter of international law, may assist in setting the boundaries between war and peace. Such clear distinctions are important from the legal perspective since different laws apply in the two periods: the laws of peace apply in times of peace; the laws of war apply in times of war between belligerent states and regulate cer- tain aspects of the relationship between these states and between them 25 Eric Lichtblau, ‘‘Senate Makes Permanent Nearly All Provisions of Patriot Act, with a Few Restrictions,” NY Times, July 29, 2005, p. A11. 26 President George W. Bush, Address to a Joint Session of Congress and the American People (Sept. 20, 2001), available at http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html (last visited on August 8, 2005). See also Bob Woodward, ‘‘CIA Told to Do ‘Whatever Necessary’ to Kill Bin Laden; Agency and Military Collaborating at ‘Unprecedented’ Level; Cheney Says War Against Terror ‘May Never End,’’’ Washington Post, October 21, 2001, p. A01; Bruce Ackerman, ‘‘The Emergency Constitution” (2004) 113 Yale Law Journal 1029 at 1043; Lauren Berlant, ‘‘The Epistemology of State Emotion,” in Austin Sarat (ed.), Dissent in Dangerous Times (Ann Arbor, MI: University of Michigan Press, 2005), p. 46. 27 Wolff Heintschel von Heinegg, ‘‘Factors in War to Peace Transitions” (2004) 27 Harvard Journal of Law and Public Policy 843 at 848 57. 180 five degrees of separation and other states not party to the conflict. While the distinction between war and peace had been eroding even before the attacks of Septem- ber 11, 2001, 28 the specter of an endless war on terror is highly prob- lematic on many levels. Consider the issue of the detention of enemy combatants. The laws of war permit the detention of combatants until the end of hostilities in order to prevent them from returning to the battlefield. Such detainees must be released and repatriated without delay after the cessation of active hostilities, unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences. 29 However, as noted in Hamdi v. Rumsfeld: We recognize that the national security underpinnings of the ‘‘war on terror,’’ although crucially important, are broad and malleable. As the Government con- cedes, ‘‘given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement’’ IftheGovernment 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 suggests that Hamdi’s detention could last for the rest of his life. 30 The notion of an endless war, with the attendant disappearance of a clear separation between war and peace, makes a decision that active hostil- ities have ceased impossible to make or at least subject to an arbitrary decision. Concerned with such implications, the Hamdi plurality went on to find that active hostilities were still going on citing active op- erations against Taliban fighters in Afghanistan. This supported further the understanding, ‘‘based on longstanding law-of-war principles,’’ that Congress intended to authorize the detention of enemy combatants to the end of active hostilities. However, the Justices also acknowledged that, ‘‘If the practical circumstances of a given conflict are entirely un- like those of the conflicts that informed the development of the law of war, that understanding may unravel.’’ 31 28 Oren Gross and Fionnuala N ´ ıAol ´ ain, ‘‘Emergency, War and International Law: Another Perspective” (2001) 70 Nordic Journal of International Law 29. 29 Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949 (1955) 6 U.S.T. 3316, T.I.A.S. No. 3364, art. 118. See also ibid., arts. 85, 99, 119, 129. 30 Hamdi v. Rumsfeld, 124 S. Ct. 2633 at 2641 (2004) (O’Connor, J.). 31 Hamdi, 124 S. Ct. 2633 at 2641 (2004). See also Curtis A. Bradley and Jack Goldsmith, ‘‘Congressional Authorization and the War on Terrorism” (2005) 118 Harvard Law Review 2047 at 2123 27; Randolph N. Jonakait, ‘‘Rasul v. Bush: Unanswered Questions” (2005) 13 William and Mary Bill of Rights Journal 1103 at 1131 32. a bad world (i): spatial distinctions 181 It’s a bad world out there (I): spatial distinctions Another line of separation between emergency and normalcy is drawn around geographic distinctions. Different legal principles, rules, and norms may be applied, for example, in distinct geographical areas that belong to the same ‘‘control system,’’ 32 such as Great Britain and North- ern Ireland, Israel and the occupied territories, or France and Algeria. One part of such a ‘‘control system’’ the controlling territory ap- plies an emergency regime to the dependent territory. At the same time a putative normal legal regime is maintained in the controlling terri- tory itself. The two legal regimes apply contemporaneously. The depen- dent territory becomes an anomalous zone in which certain legal rules, otherwise regarded as embodying fundamental policies and values of the larger legal system, are locally suspended. 33 However, the claim is that the two realities and the two concomitant legal regimes that of emergency applicable to the dependent territory and that of normalcy applicable to the controlling territory are maintained separately and do not affect each other. Maintaining a regime of legal exception in the dependent territory does not adversely affect the form and content of the normal legal order that governs the controlling territory. There is no spillover from one legal regime to the other across geographic boundaries. However, experience shows that geographic boundaries are permeable, rather than integral, when emergency powers are concerned. 34 Gerald Neuman has already demonstrated that ‘‘anomalous zones’’ threaten to subvert fundamental values in the larger legal system. 35 The belief in our ability to use the politically, legally, socially, and geographically con- structed anomaly in order to contain the exercise of emergency powers and confine their use to that territory may, therefore, be misguided. Colonies and empire: the origins of DORA After the defeat of the French fleet at Trafalgar and prior to World War I no war came close to England’s shores. Domestically, socio-economic, 32 Baruch Kimmerling, ‘‘Boundaries and Frontiers of the Israeli Control System: Analytical Conclusions” in Baruch Kimmerling (ed.), The Israeli State and Society (Albany, NY: State University of New York Press, 1989), pp. 265 67. 33 Gerald L. Neuman, ‘‘Anomalous Zones” (1996) 48 Stanford Law Review 1197 at 1201. 34 A.R. Luckham, ‘‘A Comparative Typology of Civil Military Relations” (Winter 1971) 6 Government and Opposition 5; Marcus G. Raskin, ‘‘Democracy Versus the National Security State” (Summer 1976) 40(3) Law and Contemporary Problems 189 at 200. 35 Neuman, ‘‘Anomalous Zones,” 1227 28, 1231 33. 182 five degrees of separation political, and legal developments had been marked by smooth evolu- tion without much friction and discontent. An entrenched distrust of the executive added further incentive against the institutionalization of emergency powers. When combined with the common law’s distaste for elaborate legislation it comes as little surprise that the common law’s main emergency powers mechanism martial law was not cod- ified. 36 While martial law had been unused in Britain since 1800, the practice of exercising martial law powers to ensure law and order was a familiar part of the British colonial experience. 37 The two legal regimes were applied contemporaneously by the British government. However, once emergency powers had been used routinely and ‘‘normally’’ in one part of the British empire, the distinction between center and periphery could not contain such use. Within days of the outbreak of World War I a sharp break from the centuries-old tradition of martial law took place. Lulled by extended periods of relative security and peace the British were rudely awakened to an entirely different reality. This led them to move from one extreme the absence of any statutory structure dealing with emergency powers to the other extreme of promulgating draco- nian legislative measures allowing broad discretion and almost unlim- ited powers to the government. This transformation was accomplished by the passage into law on August 8, 1914 of the Defence of the Realm Act (DORA). DORA was a general statutory scheme of wartime govern- ment. 38 It institutionalized emergency powers in Britain. In fact, it was 36 Oren Gross, ‘‘ ‘Control Systems’ and the Migration of Anomalies’’ in Sujit Choudhry (ed.), The Migration of Constitutional Ideas (Cambridge, UK: Cambridge University Press, forthcoming). 37 Bradley and Ewing, Constitutional and Administrative Law, p. 608; Charles Townshend, ‘‘Martial Law: Legal and Administrative Problems of Civil Emergency in Britain and the Empire, 1800 1940” (1982) 25 History Journal 167; Denys C. Holland, ‘‘Emergency Legislation in the Commonwealth” (1960) Current Legal Problems 148; A.W. Brian Simpson, ‘‘Round Up the Usual Suspects: The Legacy of British Colonialism and the European Convention on Human Rights” (1996) 41 Loyola Law Review 629; D.T. Konig, ‘‘ ‘Dale’s Laws’ and the Non-Common Law Origins of Criminal Justice in Virginia” (1982) 26 American Journal of Legal History 354 at 363; A.W. Brian Simpson, ‘‘The Devlin Commission (1959): Colonialism, Emergencies, and the Rule of Law” (2002) 22 Oxford Journal of Legal Studies 17; Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor, MI: University of Michigan Press, 2003); Bernard Semmel, Jamaican Blood and the Victorian Conscience: The Governor Eyre Controversy (Boston: Houghton Mifflin, 1962); Geoffrey Dutton, Edward John Eyre: The Hero as Murderer (New York: Penguin, 1977); Phillips v. Eyre [1870] 6 Q.B. 1. 38 A.W. Brian Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (New York: Clarendon Press, 1992), p. 5; 4 and 5 Geo. V, c. 29 (Aug. 8, 1914). Rossiter, Constitutional Dictatorship, pp. 153 70; Cornelius P. Cotter, ‘‘Constitutional Democracy and Emergency: Emergency Powers Legislation in Great Britain since 1914” (PhD Dissertation, Harvard University, 1953). a bad world (i): spatial distinctions 183 nothing short of ‘‘a form of statutory martial law.’’ 39 Preparing for the war, the British army demanded explicit statutory powers rather than contenting itself with the amorphous, uncodified, concept of martial law. If the army were to take extreme measures to save the nation, it wanted to be certain that its officers would not have to face the un- certain legal consequences of their actions and depend on a postwar legislative act of indemnity. DORA may well have been a new feature of English law, but it was based on a well-established precedent. The source for imitation and adop- tion was the sweeping legislative scheme of governmental powers then existing in Ireland. 40 Emergency measures applied by the British army overseas found their way into the English legal system. As we discuss fur- ther below, once such measures appeared on the English statute books theyweretheretostay. The curtailment of the right to silence in the United Kingdom On August 25, 1988, in response to escalating terrorist attacks includ- ing the August 20 bombing in County Tyrone of a military bus that left eight British soldiers dead and twenty-eight injured 41 the British government decided to adopt a series of security measures. The pack- age included a measure to limit the right to silence of suspects and defendants a well-established right both with respect to their inter- rogation by the police and with respect to their silence in court during trial. 42 The government’s argument for the proposed measure was that the wide and systematic lack of cooperation with the police by those 39 Charles Townshend, Political Violence in Ireland: Government and Resistance since 1848 (Oxford: Clarendon Press, 1983), p. 183 (quoting a memorandum of July 19, 1920, CAB 21/109). 40 Simpson, Odious,p.6. 41 Steve Lohr, ‘‘IRA Claims Killing of 8 Soldiers as it Steps up Attacks on British,’’ NY Times, August 21, 1988, p. A1. 42 Charles Hodgson and Raymond Hughes, ‘‘King Curbs Right to Remain Silent,” Financial Times (London), October 21, 1988, p. 28. See generally Fiona McElree and Keir Starmer, ‘‘The Right to Silence” in Clive Walker and Keir Starmer (eds.), Justice in Error (London: Blackstone Press, 1993), p. 58 at 60; Leonard W. Levy, Origins of the Fifth Amendment: The Right against Self-Incrimination (2nd edn, New York: Macmillan, 1986), pp. 13 24; James Wood and Adam Crawford, Right of Silence: The Case for Retention (London: Civil Liberties Trust, 1989); Susan M. Easton, The Case for the Right to Silence (2nd edn, Aldershot: Ashgate, 1998), pp. 1 3; M.R.T. Macnair, ‘‘The Early Development of the Privilege against Self-Incrimination” (1990) 10 Oxford Journal of Legal Studies 66: Richard Maloney, ‘‘The Criminal Evidence (NI) 1988: A Radical Departure from the Common Law Right to Silence in the UK?” (1993) 16 Boston College International and Comparative Law Review 425 at 427 28; Glanville Williams, The Proof of Guilt: A Study of the English Criminal Trial (3rd edn, London: Stevens & Sons, 1963), pp. 37 57. 184 five degrees of separation suspected of involvement in terrorist activities in Northern Ireland was critically hampering interrogations. 43 The factual background against which the new limitations on the right to silence were introduced, as well as specific declarations made by senior public officials, created a clear impression that the measures were designed to bolster the state’s powers needed to wage a comprehensive war on terrorism in Northern Ireland. Explaining the reasoning behind the government’s decision, the Northern Ireland Secretary of State, Tom King, emphasized: ‘‘[I]t will help in convicting guilty men. I don’t think it will undermine standards of justice. In Northern Ireland, the whole system of justice is under sustained attack by terrorists and their aim is to destroy the whole system. They intimidate and murder witnesses and judges and they train people not to answer any questions at all.’’ 44 In the past, debates about the right to silence and its scope have focused on the claims that the right was abused by criminals and attempts to curtail the right or limit it have failed whenever made; the shift in focus to the struggle against pro- fessional terrorists specifically targeting the Irish Republican Army and other paramilitary groups in Northern Ireland paved the way to such curtailment. 45 The measures were supported on the assumption that they were going to target an easily definable group and be lim- ited in their geographic application to Northern Ireland. Claims that similar measures might eventually find their way into the criminal law and procedural rules of the rest of the United Kingdom received little attention. 46 Despite repeated declarations and assurances to the effect that the new limitations were meant to strengthen law-enforcement authorities in their fight against terrorism, once the Criminal Evidence Order 43 140 Parl. Deb., H.C. (6th ser.) (1988) 184 (comments of Tom King, Secretary of State for Northern Ireland). 44 Ed Maloney, ‘‘Britain Seeks to Abolish Key Civil Liberty in Ulster: London’s Move Aimed at Thwarting IRA,” Washington Post, October 21, 1988, p. Al (emphasis added). See also Charles Hodgson, ‘‘Plan to Curb Right to Silence Approved,” Financial Times (London), November 9, 1988, p. 15; Francis Cornish, ‘‘Keeping Terrorism’s Advocates off British Air,” NY Times, November 13, 1988 (Letters to the editor); Viscount Colville of Culross, Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1984 (London: HMSO, 1987), Cmnd. 264, p. 51. 45 Oren Gross, ‘‘On Terrorists and Other Criminals: States of Emergency and the Criminal Legal System” in Eli Lederman (ed.), Directions in Criminal Law: Inquiries in the Theory of Criminal Law (Tel Aviv: Tel Aviv University, 2001), p. 409. 46 Steven Greer, ‘‘The Right to Silence: A Review of the Current Debate” (1990) 53 Modern Law Review 709 at 716 17; Edward Rees, ‘‘Guilty by Inference,” Guardian, April 11, 1995, p. 11. a bad world (i): spatial distinctions 185 (Northern Ireland) of 1988 was approved it was approved as an Order in Council, forsaking traditional legislative procedures its language was not confined to acts of terrorism. As Susan Easton notes, the use of the Order in Council procedure ‘‘could not be justified on emergency grounds and its use would seem to rest on either the low significance attached to the change or the desire to circumvent public debate. The right to silence, which symbolised the assertion of the common law and Parliamentary sovereignty against the use of prerogative power . . . was effectively extinguished by this procedure.’’ 47 Moreover, the Order was enacted not within the framework of emergency legislation that already existed in Northern Ireland, but rather as ordinary criminal legisla- tion. 48 Any mention or indication of the Order’s relation to terrorist acts disappeared. The Order’s jurisdiction and the restrictions it set on the right to silence were not limited to those suspected of serious crimes related to terrorism, but were expanded and interpreted as relating to ev- ery criminal suspect or defendant in Northern Ireland. 49 The Order was ‘‘a clear extension of the emergency regime into the ordinary criminal law. 50 Denouncing the Thatcher government’s decision to ban radio and television broadcasting of interviews with persons connected to cer- tain organizations 51 the Labour Party’s spokesman on Northern Ireland, Kevin McNamara, blamed the government for using Northern Ireland as ‘‘an experimental laboratory for draconian measures.’’ 52 Six years after 47 Easton, Right to Silence, pp. 68 69; John D. Jackson, ‘‘Recent Developments in Criminal Evidence” (1989) 40 Northern Ireland Legal Quarterly 105; Michael Mansfield, ‘‘Reform that Pays Lip Service to Justice,’’ Guardian, October 6, 1993, p. 22; Andrew Ashworth and Peter Creighton, ‘‘The Right of Silence in Northern Ireland” in Jon Hayes and Paul O’Higgins (eds.), Lessons from Northern Ireland (Belfast: SLS, 1990), p. 117 at 122 25; Gross, ‘‘Terrorists and Other Criminals,” 434. 48 Easton, Right to Silence, p. 69. 49 Antonio Vercher, Terrorism in Europe: An International Comparative Legal Analysis (Oxford: Clarendon Press, 1992), pp. 121 25; Gregory W. O’Reilly, ‘‘England Limits the Right to Silence and Moves towards an Inquisitorial System of Justice” (1994) 85 Journal of Criminal Law and Criminology 402 at 425. 50 Fionnuala N ´ ıAol ´ ain, ‘‘The Fortification of an Emergency Regime” (1996) 59 Albany Law Review 1353 at 1384. 51 These measures were introduced as part of the anti-terrorism package in 1988. Graham Zellick, ‘‘Spies, Subversives, Terrorists and the British Government: Free Speech and Other Casualties” (1990) 31 William and Mary Law Review 773 at 775 82; Craig R. Whitney, ‘‘Civil Liberties in Britain: Are They under Siege?” NY Times, November 1, 1988, p. A18. 52 Andrew Phillips, ‘‘Gagging the IRA: Thatcher Imposes a Controversial Crackdown,” Maclean’s, October 31, 1988, p. 34. 186 five degrees of separation beginning its ‘‘experiment’’ regarding the right to silence in Northern Ireland, the British government decided that the time was ripe to extend the experiment to the rest of the United Kingdom. In November 1994, parliament passed the Criminal Justice and Pub- lic Order Act (CJPOA). 53 Articles 34 through 37 of the act reproduced, almost verbatim, the relevant provisions of the 1988 Northern Ireland Order. 54 In fact, when proposing and explaining the new act, the British Home Secretary relied specifically on the Northern Irish example. Once again, the government claimed that the new legislation was necessary because terrorists were abusing the right to silence. Thus, in a speech to the annual convention of the Conservative Party on October 6, 1993, Home Secretary Michael Howard announced: ‘‘The so-called right to si- lence is ruthlessly exploited by terrorists. What fools they must think we are. It’s time to call a halt to this charade. The so-called right to silence will be abolished. The innocent have nothing to hide and that is exactly the point the prosecution will be able to make.’’ 55 As with its Northern Ireland prototype, the CJPOA was presented as part of a more comprehensive plan against terrorism and organized crime. As with the Northern Ireland Order, these new limitations on the right to silence were incorporated into criminal legislation and were expanded to apply to every suspected offender, not just those accused of terrorist activities. Gareth Peirce explained the shift from terrorism-focused legislation to ordinary criminal law: [B]etween this announcement to the Tory Party Conference last autumn [by Michael Howard], and the announcement of the new Criminal Justice Bill some weeks later, came Hume Adams and revelations of government contacts with the IRA. Suddenly ‘‘terrorism’’ might not be in existence for very much longer. The Criminal Justice Bill . . . switched its terminology to ‘‘professional criminals’’, 53 Paul Tain, Criminal Justice and Public Order Act 1994: A Practical Guide (London: Longman, 1994). 54 John D. Jackson, ‘‘Curtailing the Right of Silence: Lessons from Northern Ireland” (1991) Criminal Law Review 404 at 405 06; Peter Mirfield, Silence, Confessions and Improperly Obtained Evidence (Oxford: Clarendon Press, 1997), pp 247 70; Chris Blair, ‘‘Miranda and the Right to Silence in England” (2003) 11 Tulsa Journal of Comparative and International Law 1 at 12 18. 55 Alan Travis, ‘‘Right to Silence Abolished in Crackdown on Crime,” Guardian, October 7, 1993, p. 6 (emphasis added); see also Heather Mills, ‘‘Tougher Policies Aimed at Helping Victims of Crime,” Independent, November 19, 1993, p. 6; Colin Brown and Patricia Wynn Davies, ‘‘Ministers Want Silent Suspects to Be Filmed,” Independent, February 18, 1992, p. 2; Alan Travis, ‘‘Labour Attacks Justice Bill over End of Right to Silence,” Guardian, January 12, 1994, p. 6. [...]... instituant un ´tat d’urgence was used to introduce e an emergency regime in large parts of France itself, including the capital Denouncing the new measures, an editorial in Le Monde suggested: ‘‘Exhuming a 1 955 law sends to the youth of the suburbs a message of astonishing brutality: that after 50 years France intends to treat them exactly as it did their grandparents.’’118 Under article 2 of the law. .. Human Rights in the Aftermath of September 11” (2002) 25 Harvard Journal of Law and Public Policy 441 at 453 54 ; Ruth Jamieson and Kieran McEvoy, ‘‘State Crime by Proxy and Juridical Othering” (20 05) 45 British Journal of Criminology 50 4 at 51 6 17; Association of the Bar of the City of New York and Center for Human Rights and Global Justice, New York University School of Law, Torture by Proxy: International... purpose’’ of such surveillance was the gathering of ‘‘foreign intelligence information.’’1 75 Thus, while the abroad domestic distinction eroded, distinctions were still maintained between ‘‘foreign’’ intelligence gathering and ‘‘domestic’’ law enforcement activities.176 Further erosions of the once-clear distinctions occurred as a result of the passage of the USA PATRIOT Act in 2001 Section 218 of the... such as assassinations (including several failed attempts on the life of Charles de Gaulle) to further its cause89 -resorted increasingly to violent methods, including torture and murder, against its ‘‘enemies’’ in France itself.90 Use of torture was not the only element of lawlessness to spill over from Algeria into France The Algerian conflict bred an atmosphere of lawlessness in the ranks of the French... 3, 1 955 law that had been introduced in the context of the Algerian war.117 That law has been 114 1 15 116 117 Philippe Naughton, ‘‘France Extends Emergency Powers to Contain Riots,’’ Times Online, November 14, 20 05 Adam Sage and Charles Bremner, ‘‘France Tries to Restore its Image after Ethnic Revolt,” Times Online, November 15, 20 05 Simon Freeman and Charles Bremner, ‘‘France Declares State of Emergency,”... of the British empire The five techniques used against internees in Northern Ireland i.e., in part of the United Kingdom that is, to paraphrase the words of Margaret Thatcher, ‘‘as British as Finchley’’67 have previously been used in British colonies and dominions such as Kenya, Cyprus, Palestine, Aden, British Cameroon, and Malaya.68 They were incorporated into the Joint Directive on Military Interrogation... 187 invoking them instead of terrorists as the excuse, and proposed the end of the right to silence for us all .56 The significant change, in comparison to 1988, was the intensity of objections expressed in 1994 against the CJPOA .57 However, the opponents of the proposed legislation found themselves fighting an uphill battle, opposing the provisions that they had not previously contested in the case of. .. process. 159 This is of special significance since treaties become part of the law of the land and may enjoy the same status as a congressionally enacted statute.160 However, since the end of the 1930s, treaties have been replaced by executive agreements as the main form of 155 156 157 158 159 160 The White House, The National Security Strategy of the United States of America (September 17, 2002), p 31, available... of the Fourth Republic no fewer than twenty-three governments served in France, with the longest term in of ce of any of them being just short of seventeen months. 95 Yet, the war emphasized these institutional and structural inadequacies In that sense it served as a catalyst for change.96 The problem of Algeria, seen against the background of a prolonged inability to take decisive actions because of. .. to distinguish between the two domains, applying norms of normality in one while adhering to concepts of emergency in the other, failed Moreover, in so far as the two spheres grew closer together, it was the sphere of exigency that set the tone and prevailed over notions of normality Events in Algeria set the national mood in France and were prominent on the political agenda of that country In order . clear distinctions are important from the legal perspective since different laws apply in the two periods: the laws of peace apply in times of peace; the laws of war apply in times of war between. System of Justice” (1994) 85 Journal of Criminal Law and Criminology 402 at 4 25. 50 Fionnuala N ´ ıAol ´ ain, ‘‘The Fortification of an Emergency Regime” (1996) 59 Albany Law Review 1 353 at 1384. 51 These. resorted to an ‘‘inter- rogation in depth’’ of some of the internees whose cases were reviewed. ‘‘Interrogation in depth’’ consisted of the combination of some or all of five techniques of disorientation