Reproduced below is the text of yesterday’s press release from the Libertarian Alliance:
“Any Excuse for a Police State: Blunkett Secret Trial Plans as Bad as Foreign Conquest”, Says Free Market and Civil Liberties Think Tank
Home Secretary David Blunkett wants to bring in laws allowing pre-emptive arrest of suspects, secret trials without juries, with state-chosen defence lawyers, on undisclosed evidence provided by the security services, and a lower burden of proof. He says this is to protect the country from “terrorism”.
“Nonsense”, says Dr Sean Gabb, Director of Communications for the Libertarian Alliance. “We did none of this in the second world war, when the enemy was poised to invade from across the Channel, and killing 60,000 British civilians in bombing raids. We did none of this when Irish terrorists were killing thousands of state and civilian victims within the United Kingdom.
“The truth is, this government wants a police state and will use any excuse to get one. We are told these new laws will only apply in terrorism cases. That is a lie. We were once told that confiscation orders would only be used for drug dealing cases, and after normal conviction: now we have a Confiscation Agency trying to seize assets from suspected criminals without the need for criminal charges. This legislation would soon become the normal mode of trial of all offences.
“Do you want a criminal justice system where you can be tried in secret by another Lord Hutton, on the basis of secret evidence supplied by the same security services that did such a good job at proving Saddam Hussein had weapons of mass destruction? I don’t. Looking at these proposals, anyone who fell asleep in 1940 and woke today might almost think the Germans had won the war. I wonder if all those who fought to prevent that ever suspected our own government would behave like an army of occupation?”
Perhaps that is now how they think of themselves.
[This article has been cross-posted to White Rose.]
I’ve seen it rather spitefully observed that the Libertarian Alliance’s “LA” logo is a mildly massaged swastika…
I seriously doubt that Britain never secretly or pre-emptively detained any Nazi spies/saboteurs during WWII. Since they were unlawful combatants, they probably weren’t given any trials at all. Oswald Mosely was pre-emptively detained (that’s not a defense of his treatment, just a statement of fact). In the Quirin case the US did try Nazi saboteurs by a military tribunal, in which the accused were represented by a State-appointed military lawyer.
As for the claim that all special criminal procedures introduced for trying terrorists eventually migrate into regular criminal procedure for all crimes, as I understand it Britain allows for the detention of terrorist suspects for 7 days without their being charged, and this has yet to migrate to the procedures for those charged with any other sort of crime. The most that can be truthfully argued is that some special procedures have migrated into regular practice and that there is a danger that this could happen with these proposals.
It is arguable that terrorists willing to engage in suicide attacks with chemical, biological, or nuclear weapons present a far greater threat than did the IRA, which, as far as I know, never intentionally engaged in suicide attacks and stuck to conventional explosives. Roughly 3,000 people were killed on all sides throughout the whole 30-year period of “The Troubles,” – about the same as on the single day of 9/11. Greater threats call for greater steps to be taken to deal with them.
I’m not convinced that these particular proposed steps are warranted, but denials of the precedent for them and the greater threat presented by Al Qaeda do not convince me that they are unwarranted, either.
Tim Starr:
“Since they were unlawful combatants, they probably weren’t given any trials at all.”
That paradoxically presumes both a prospective legalistic approach and the historically later rationalisation of “unlawful combatant” status. It’s not how British law worked in the 1940s. (Nor how wars ever work in practice.)
“[…] as I understand it Britain allows for the detention of terrorist suspects for 7 days without their being charged, and this has yet to migrate to the procedures for those charged with any other sort of crime.,
That one procedure hasn’t yet become generalised equally doesn’t disprove a tendency for them to do so. It is in fact possible nowadays to detain suspects for long periods without charge, and police routinely obtain the necessary senior police officer’s or magistrate’s approval to do. The difference in the terrorism legislation is only the interval at which they have to ask. The power to detain without charge is itself new-ish, and it first appeared in terrorism legislation. Once upon a time one had to be formally charged or released almost immediately: one was arrested only on a specific charge, not “on suspicion” or “for questioning”. From memory, the famously “temporary provisions” of the 1974 act first permitted suspects to be detained without charge for a maximum of 96 hours, in extreme cases. That is now readily available to police for all arrestable offenses.
“It is arguable that terrorists willing to engage in suicide attacks with chemical, biological, or nuclear weapons present a far greater threat than did the IRA […]”
This is at best irrelevant. How does unbalancing trials diminish the threat of terrorism or any other form of crime? To diminish the threat you need to catch the criminals or discourage them. Is a suicide bomber likely to be deterred by consideration of the circumstances of a possible trial?
The requirement for trials and police procedures to be fair arises from the need to avoid false convictions out of mistaken or malicious accusations. It does not and cannot have any effect on the apprehension of the guilty.
I do believe the US just had Tough Tony and Lucky Luciano get the longshoremen to dissappear anybody with a suspicious accent.
Tim Starr:
“[…] as I understand it Britain allows for the detention of terrorist suspects for 7 days without their being charged,…”
Someone’s not paying attention. That limit was just doubled to fourteen days, using “secondary legislation”, ie an order in Council requiring no debate or scrutiny by anyone.
This by itself goes some way towards proving the point you are trying to DISprove.
I don’t suppose Dr Gabb would prefer the Churchill approach: “Cop the lot!” All persons of Arab origin could then be interned.
I can’t help but feel that the Libertarian Alliance et al are engaging in histrionics in this matter. The problem of how an open democracy deals with necessarily secret information within its political and judicial system is a difficult one. This problem dogged the U.S. all during the Cold War when it came to convicting spies. Spies often escaped punishment simple by threatening to reveal in open court what information it was that they stole. The government was also unwilling to reveal how it discovered the spy or how it new how much damage the spy did to national security.
In the case of terrorism, full disclosure of methods and evidence as in a standard criminal trial would mean destroying the usefulness of the methods and agents used to discover the accused in the first place. Every preemptive investigation would have to start over from scratch as any previous trials would have revealed all the methods and agents used to catch the terrorist in the first trial.
I don’t think most critics of military tribunals and similar solutions offer any alternatives. Until they do, their arguments won’t carry much weight.
Looks like I was right about the preventive detention:
“In September 1939, the police arrested a large number of Germans living in Britain. The government feared that these people might be Nazi spies pretending to be refugees. They were interned and held in various camps all over Britain. Like other refugees they were eventually appeared before tribunals which classified them into three different groups. ‘A’ class aliens were interned, whereas ‘B’ class aliens were allowed to leave the camps but had certain restrictions placed upon their movements. The vast majority of refugees were identified as ‘C’ class aliens and were allowed to go free.
“On 12th May, 1940, John Anderson, who was in charge of national security, ordered the arrests of over 2,000 male aliens living in coastal areas. A few days later all ‘B’ class aliens were rounded up and placed into internment camps. Winston Churchill defended this policy by claiming that it was necessary to “collar the lot”.”
– http://www.spartacus.schoolnet.co.uk/2WWgermansBR.htm
So much for Mr. Herbert’s lecture about how British law worked at the time, and how wars work in practice. Under the international laws of war, unlawful combatants are subject to summary execution.
I agree that the fact that one special procedure hasn’t yet been generalized does not disprove a tendency for that to happen; I said as much in my original comment. My point stands that it’s an exagerration for Gabb’s press release to predict that such procedures will inevitably be generalized.
Mr. Herbert seems to be unaware that requiring those apprehended by means of secret evidence to be tried publicly discourages the prosecution of such suspects because of the risk of compromising the sources and methods of secret intelligence. That decreases the risk that terrorists will be prosecuted, which increases the likelihood that terrorists will attack.
I agree that trials must be fair, and that there is a risk that secret trials with secret evidence may result in erroneous conviction of innocents. This risk must be balanced against the risk that those guilty of terrorism will not be stopped because to do so would give away too much of our hand to the enemy.
These are difficult questions, to which I don’t know the answers. To simply chalk it all up to “any excuse for a police state,” as Gabb does, is highly irresponsible.
I’m well aware of the internment of presumed enemy aliens in 1940. Perhaps my “lecture” presupposed too much prior knowledge on behalf of the student.
(Tim Starr is still applying the “unlawful combatants” rationale retrospectively.)
I’m also well aware of the standard craft resistence to “exposing the methods of intelligence”, and know why it is regarded as so important. But if evidence can’t be tested, it just isn’t evidence. There’s a crucial difference between interdicting terrorist actions, which I’m happy may be done in secret, and convicting suspects which is the application of state force to punishment.
As for: “My point stands that it’s an exagerration for Gabb’s press release to predict that such procedures will inevitably be generalized.” Hm ….
Mr Blair seems to be generalising them already, before they are enacted:
So it’s not just Blunkett: there’s an organised crime against the Common Law fair trial going on here.
Oh ye gods of Samizdata, forgive me the mangled blockquote-tags!
Mr. Herbert’s still getting it wrong:
1) Gabb claimed that Britain got through WWII without preventive detention. I showed that Britain did use preventive detention during WWII, of enemy aliens as well as citizens such as Oswald Mosely. Gabb has admitted this on the libertarian-alliance-forum list, and argued the importance of the distinction between citizens and aliens, and condemned Mosely’s detention. I find this a reasonable path of argument to take, unlike Mr. Herbert’s evasions.
2) The law on “unlawful combatants” is well-established in Anglo-American military law. It was upheld in a U.S. Supreme Court case during WWII. While Mr. Herbert may rightfully argue that this wouldn’t necessarily apply to Britain, he is wrong to continue to argue that I my application of the legal concept of an unlawful combatant is retrospective, as it most certainly is not. It comes from a WWII case.
3) On the use of secret evidence, there are other ways to test evidence besides a public courtroom trial. It now seems that Mr. Herbert has no objections to the use of secret evidence to indict terrorists, only to convictions based upon such evidence. Very then, I take it that he must now endorse the detention of terrorists indicted with secret evidence. Otherwise, the interdiction would only last until they were released without being charged or convicted.