The Legacy of the Crash

by Terrence Casey

  Judges played an influential policy-making role in Britain for several centuries through the development and application of the common law. Starting in the early Victorian era, however, and continuing through the first half of the twentieth century, judicial policy-making in the UK became notably circumscribed as the principle of parliamentary sovereignty took hold in constitutional thinking – except in the sense that the judges’ ostentatious deference to the administrative state had the effect of reinforcing and legitimizing the status quo. This ostensibly non-political stance was promoted by successive Lord Chancellors and Lord Chief Justices as a means of protecting the judiciary’s prestige, if not necessarily its independence. One measure of this project’s success is the frequency with which leading judges were called on to chair blue-ribbon panels and public inquiries into highly politicized issues because they themselves were widely perceived as being politically unbiased (Stevens, 2002).5

  The judges’ lengthy self-exile from the political arena came to an end in the 1970s with a sharp increase in the use of judicial review, which in the British context refers to a judicial determination of whether a public official has acted in accordance with statutory standards. Behind the expanded use of judicial review was the proliferation of complex social and economic legislation, enacted under both Labour and Conservative governments, which typically involved substantial delegation of authority to government ministers. In exercising judicial review, British judges were taking on an important, if not always highly visible, political role. It was not, however, an entirely new role. Rather, it was a case of judges once again acknowledging, ‘as they had always done except in their period of amnesia, that part of their duty was to require public authorities to respect certain basic rules of fairness in exercising power over the citizen’ (Wade, 2000, p. 63).

  But the growth of judicial review was merely a prologue to the most significant stimulus to judicial empowerment in the UK, the passage of the Human Rights Act (HRA) 1998 during the first Blair Government. By ‘domesticating’ the civil and political rights codified in the European Convention on Human Rights (ECHR), the HRA held all public authorities in the UK – including Parliament itself – accountable to convention restrictions that now would be justiciable in British courts. Judges were given the authority (in fact, the duty) to examine statutes and official actions that were challenged on ECHR grounds. If they concluded that such laws or conduct could not be found in conformance with the convention, they were obliged to issue ‘declarations of incompatibility’ calling the government’s attention to the discrepancy. While declarations of incompatibility are not, in theory, the same as findings of unconsti-tutionality, in practice they have carried virtually the same force. Of the approximately two dozen declarations of incompatibility issued by UK courts to date, none has been either ignored or defied by the government. The HRA thus has come to be seen by many in Britain as the functional equivalent of an entrenched bill of rights, despite the continued absence of a written constitution or a custom-built ‘British bill of rights’ (Bevir and Maiman, 2009).

  In Britain, then, the ‘war on terror’ coincided almost exactly with unrelated political-legal developments that already had begun to transform the role of the judiciary. The major questions in the post-9/11 period were whether and how Britain’s judges would use their powers – those associated with judicial review as well as their new HRA-based authority – to participate meaningfully alongside the government and Parliament in determining the substance of anti-terrorism law and policy. How did the Law Lords respond to this challenge? And how did their responses compare to those of their counterparts on the US Supreme Court?

  The ‘war on terror’ decisions

  When these judgments are looked at collectively, it is clear that the arguments advanced by the US and the UK governments in defense of their anti-terrorism policies received remarkably little judicial support. Although the cases were by no means all total government defeats, not one of them could be described as an unqualified victory. The US Supreme Court rejected the Bush administration’s claim that the President could deny Guantánamo inmates the right to challenge their detention before neutral third parties (Hamdi and Rasul); held that the President could not establish a system of military commissions to conduct war crimes trials without congressional authorization (Hamdan); and found that legislation denying Guantánamo inmates access to federal habeas corpus proceedings fell short of constitutional requirements and, moreover, that the procedures established by that law were not an adequate substitute for conventional habeas corpus review (Boumediene). Virtually the only victory the Court gave to the Bush administration was its holding in Hamdi that the Authorization for the Use of Military Force (AUMF) resolution passed by Congress in September 2001 gave the President sufficient authority to order that battlefield captives be detained indefinitely at Guantánamo Bay. However, in Hamdi the Court also declined even to consider the administration’s preferred position: that the President had the constitutional power to issue such an order even without congressional action.

  Meanwhile, the Law Lords denied the government the authority to hold non-British nationals suspected of terrorist activities indefinitely (A/2004); rejected the government’s claimed power to use evidence in an immigration tribunal possibly procured through torture by a foreign state but without British complicity (A/2005); ruled that the Home Secretary could not issue control orders against terror suspects requiring home curfews of 18 hours a day (JJ) – while upholding curfews of 12 and 14 hours, respectively (E and MB); decided that the appointment of security-vetted special advocates in control order proceedings involving secret evidence was not an adequate protection of suspects’ right to a fair trial (AF/2007); and held that the Home Secretary could not rely on secret evidence in applying for control orders against terror suspects (AF/2009).

  Table 13.1 summarizes the collective outcomes of these eight decisions in terms of their restrictions on government actions: five executive orders, actions, or proposals were held to either violate or lack the support of law, a provision of an act of Congress was found unconstitutional, and a section of a parliamentary statute was declared incompatible with the European Convention. In terms of their responses to the claims of the other branches of their respective governments, there is little to distinguish one set of judgments from the other. However, to look more closely at the nuances of the decisions, the following sections will focus, in turn, on what the courts had to say about executive, legislative, and judicial authority.

  Table 13.1 Summary of US Supreme Court and UK House of Lords judgments restricting government actions, 2004–09

  US Supreme Court

  UK House of Lords

  Executive action

  Denied President authority to prohibit detainees from accessing review of legality of detention (Hamdi, Rasul).

  Denied Home Secretary authority to rely on third-party torture evidence in court (A/2005).

  Denied President unilateral authority to establish military tribunals (Hamdan).

  Denied Home Secretary authority to impose curfew orders with 18-hour home curfews (JJ).

  Held that the use of special advocates in control order hearings was not sufficient protection of fair trial right (AF/2007).

  Denied Home Secretary authority to use secret evidence in applications for control orders (AF/2009).

  Legislative action

  Declared habeas corpus – stripping provisions of the Military Commissions Act unconstitutional for failing to meet suspension requirements of Article 1, Section 9 (Boumediene).

  Declared indefinite detention provision of Anti-Terrorism Act 2001 incompatible with Articles 5 and 14 of European Convention (A/2004).

  Executive authority

  One of the most conspicuous features of anti-terrorism policies in both the US and the UK (and elsewhere) was the development and use of greatly expanded executive powers. Following 9/11, President Bush’s legal and political advisers aggressively advanced the ‘un
itary executive’ doctrine in defense of untrammeled presidential authority with respect to all Article 2 functions; meanwhile, the steady accumulation of prime ministerial prerogatives and the accompanying decline of both cabinet and parliamentary independence over several decades left Blair with considerable scope for exercising unilateral authority. Finding their existing powers less than adequate, however, both leaders sought and received legislative approval for new executive authority, which in the US included statutory instruments such as the AUMF and the US Patriot Act, and in the UK, a series of comprehensive anti-terror laws.

  In both countries, these measures soon drew legal challenges from civil liberties organizations. The first two of these cases – Hamdi and Rasul – reached the US Supreme Court in 2004, brought not by, but on behalf of, the named appellants. At issue were the legality of the Guantánamo Bay detentions themselves and whether the administration could bar its prisoners (which it classified as ‘unlawful combatants’) from initiating federal habeas corpus proceedings. In Hamdi, a case involving the only known US citizen held at Guantánamo, the court employed a broad reading of the AUMF to uphold the President’s blanket detention order but rejected the administration’s argument that it could deny detainees access to neutral third party review of the legality of their detention. Justice Sandra Day O’Connor’s majority opinion struggled to find a middle ground between locking the Guantánamo inmates out of federal court, on the one hand, and throwing the courtroom doors wide open, on the other. Trying to be sensitive both to military exigencies and to individual rights, O’Connor avoided specific reference to habeas corpus proceedings, holding that ‘a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker’ (emphasis added). But in the companion case of Rasul, brought on behalf of a non-citizen detainee, Justice John Paul Stevens’ majority opinion showed none of O’Connor’s deference to the administration. Eschewing the vague middle ground of Hamdi, Stevens bluntly concluded that US law ‘confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantánamo Bay Naval Base’. Though the Bush administration could rightly claim that its basic detention policy had been vindicated, it was left with the unwelcome task of developing a process of neutral third-party review of some 800 individual cases.

  Two years later, Stevens’ majority opinion in Hamdan again gave the administration rather rough treatment. Declining to read the AUMF even more expansively than in Hamdi, Stevens found no legal basis for the President’s executive order establishing military commissions to try a number of Guantánamo detainees for war crimes. Nor did Stevens accept the President’s argument that the constitution permitted him to act unilaterally even without such authority. While ‘emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities’, Stevens concluded that ‘in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction’. The President’s military commission plan fatally lacked the imprimatur of Congress. Stevens’ opinion was laced with an unmistakable tone of impatience and frustration with the Bush administration. It may have reflected his frustration at the administration’s decision (which was not at issue in the Hamdan case) to respond to the letter of O’Connor’s Hamdi opinion while ignoring Stevens’ Rasul holding altogether, by implementing its own system of military-staffed ‘combatant status review tribunals’ (CSRTs) as an alternative to conventional federal court habeas corpus review. Clearly the administration’s strategy was to continue using unilateral authority until it was explicitly ordered not to.

  The question in the first ‘war on terror’ case heard by the House of Lords, A/2004, was whether a provision of the 2001 Anti-Terrorism Act authorizing the indefinite detention of foreign nationals suspected of terror-related activities who could not be legally deported, violated Articles 5 (liberty and security of the person) and 14 (freedom from discrimination) of the ECHR. This in turn raised the question of whether the government’s formal derogation from Article 5 was consistent with the two conditions set for derogation by ECHR Article 15. The first requirement is that a ‘war or other public emergency [is] threatening the life of the nation’. Writing for eight of the nine law lords hearing the case, Lord Justice Bingham concluded that ‘great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment’. Bingham’s deferential language seemed to echo O’Connor’s effort in Hamdi to acknowledge the pressures on a beleaguered government to respond effectively to a military threat of unknown proportions. However, his conciliatory tone disappeared as soon as he addressed the second Article 15 derogation requirement: that a signatory ‘may take measures derogating from its obligations under this Convention [only] to the extent strictly required by the exigencies of the situation’ – the test of proportionality. On this second question, the court reserved a much larger role for itself because under the jurisprudence of the European Court of Human Rights the proportionality question – unlike the public emergency question – was not considered a matter of ministerial discretion. As Bingham put it,

  [T]he greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions. (A/2004)

  Bingham then proceeded to dismantle the argument that the indefinite detention measure was indeed ‘required by the exigencies of the situation’ and concluded by rebuking the government for using

  an immigration measure to address a security problem [which] had the inevitable result of failing adequately to address that problem (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al-Qaeda, may harbour no hostile intentions towards the United Kingdom.

  If Bingham’s exasperation with the government was clear in A/2004, the Law Lords’ treatment of the government was more measured and respectful – closer to O’Connor’s approach than to Stevens’ – in two subsequent decisions involving the admissibility of evidence – even though the government still lost both cases. In A/2005, the court decided unanimously that evidence obtained through torture by another nation is inadmissible in a British court proceeding. However, the court then adopted, by a margin of five to two, an admissibility test favorable to the government, requiring the court to establish ‘by means of such diligent enquiries into the sources that it is practicable to carry out and on a balance of probabilities that the information relied on by the Secretary of State was obtained under torture’. The two dissenters (Lord Bingham and Lady Hale), objected that such a standard would undermine the effect of the ban by placing the burden of proof of torture on the claimant. Their preferred alternative was that challenged evidence be considered inadmissible whenever the court ‘is unable to conclude that there is not a real risk that the evidence has been obtained by torture’.

  The Law Lords’ judgment in Secretary of State for Home Affairs v. AF, the 2009 case dealing with the admissibility of secret evidence in court, points to another, perhaps ironic, element of judicial empowerment – that the rule of law can sometimes saddle judges with responsibility for decisions with which they personally disagree. While the court unanimously supported a complete prohibition against the use in court proceedings of any evidence not disclosed to the defendants, several members made clear their own lack of enthusiasm for this result. They strongly preferred the position urged by the government, the continued use of a more f
lexible ‘fairness’ standard to determine admissibility. The court had adopted this test in deciding an earlier version of the same case two years earlier. In the meantime, however, that case had gone to Strasbourg on appeal, resulting in a ruling that ECHR Article 6 prohibited the use of undisclosed evidence, a sweeping precedent which the House of Lords now considered itself obliged – however reluctantly – to follow.

  In the set of 2007 cases, the Law Lords delivered a mixed verdict on a variety of challenges to the government’s control order regime. In JJ, Lord Bingham, applying principles established by the European Court of Human Rights, found that a control order involving an 18-hour home curfew (which had already been reduced to 16 hours by the Home Secretary) was incompatible with ECHR Article 5. It was a close call, however, with two of the five judges contending that such treatment did not constitute a deprivation of liberty because it did not amount to actual imprisonment. Indeed, in JJ’s two companion cases, E and MB, the Law Lords decided unanimously that control orders requiring 12 and 14 hours of home confinement, respectively, did not violate the convention. Regarding the use of undisclosed evidence, their lordships held that the ‘special advocates’ appointed by the government to help defend the suspects were not in themselves sufficient to safeguard the suspects’ right to a fair trial; however, rather than explicitly prohibiting the use of such evidence, they left it to the lower court to decide in each case whether fairness had been achieved. Thus, while the government could claim that the court had ‘upheld the control orders regime and judged that no existing control orders need to be weakened’ (Dyer, 2007), critics of the system contended that it had been dealt a serious blow. If nothing else, the decisions made it clear that there were still serious questions about the government’s control order policy that only judges could answer.