The End Of Habeas Corpus in Great Britain

Interesting article in Monthly Review on the recent spate of anti-terrorism legislation that has dogged the UK. One thing that I find quite interesting is the relationship between exclusion and emergency within notions of the 'rule of law'. Aside from the numerous problems associated with the formal freedoms guarateed by the 'rule of law' the fact of the matter is that liberal democracies across the world systematically exclude groups of people from the 'rule of law'. This is particularly aided by the notion of the 'state of emergency', when certain protections are necessarily suspended to 'defend' the public.

Thus the 'state of emergency' always serves to justify departures frm 'normal' legality. This is where the position of the Law Lords in the Belmarsh detainees case becomes problematic. Most of the Law Lords didn't question the fact that a 'state of emergency' did exist, they merely decided that the measures used to combat said emergency were disproportionate. Negri and Hardt have noted in Multitude that the state of 'emergency' has become the norm in liberal democratic society. There is a 'permanent exception' that constantly justifies the exclusion of certain people from 'the rule of law'.

The point is though that as this 'emergency' becomes more serious, more generalised, the class of people who are potentially affected by these 'gaps' widens. Witness the terrifyingly indeterminate definition of terrorism in the the Terrorism Act 2000. As the article states:

The most significant part of the Prevention of Terrorism Bill is the fact that it expands the suspension of law to include citizens. It puts an end to a double judicial system: rule of law for citizens and pure violence for foreigners. The suppression of habeas corpus is extended to the whole population. It is now a generalized state of exception. This law, like the American Patriot II project, must be envisaged as the first step in a process intended to extend measures that suspend the law to the entire population, including citizens, within the context of the war on terrorism. The home secretary already revealed this project. He also spoke of the possibility of trying simple suspects in special courts of law. The accused would not have the choice of his or her attorney. The latter would be selected by the executive power, on the basis of a list approved by the secret services.

This is important. Whilst the systematic exclusion of certain persons from the legal system is never something to be taken widely, an increase in its scope is of course worrying. It represents the increasingly overt politicisation of the law, and a continued disintegration of the legal form.

Of course, when one rationally examines the situation there really is no state of emergency to speak of. One wonders just how much threat there truly is from terrorism. Even those 'big' attacks that do succeed in reality kill very few people. If one was to judge states of emergencies from deaths surely the most pressing state of emergency is caused by the impersonal violence of global capitalism, which kills untold numbers of people every day.

But if we have reached an 'emergency', the one wonders when it will ever end. If this is an emergency, then for the foreseeable future we will surely be living through an emergency. This of course has implications for the 'rule of law':

However, this law is no more than formally part of a state of emergency. It gives judicial prerogatives to the home secretary. A person is designated as terrorist not by the decision of a court, but by a certificate issued by a representative of the executive power. At no point does the latter have to justify a decision that is applied to simple suspects. Objective facts, which should be used as the basis of these suspicions, are not even necessary since they remain secret. It suffices that the administrative authority assert that it is detaining the suspects and that this declaration be corroborated by a court. What is the guarantee of a judicial control that is exercised without the possibility for the defense to assert its rights, even to know what it is being charged with? What independence can the judicial power assert in a decision-making process in which it does not have the means to verify the information that is given to it as well as the means of proof?

The Bill may have been defeated in the Commons (in part), it may be delayed and troubled by the Lords, but it represents a trend in liberal democracies towards the overtly political rule of pure violence. Much as notions of the 'law' as non-violence should be derided, it remains true that the law is violence exercised within a specific form, one in which individuals are interpellated as formally equal, and at least have a minimal protection, insofar as 'legal language' goes. This tendency to remove even those slim protections is surely a worrying one.

Tone

Tony is pulling a strop it seems:

But Mr Blair insisted that his flagship terror bill must go through intact, and challenged Labour rebels to consult their constituency parties and voters this weekend to see if there was public support for the measure.

Fat chance.

Though one hopes my favourite topic will also be addressed:

The biggest shock to the government came when an amendment tabled by leftwing Labour backbencher and QC, Bob Marshall Andrews, making it clear that people had to show that they intend to induce and encourage terrorism before they could be prosecuted was defeated by one vote. He warned that both he and Cherie Booth could have been arrested under the bill, and quoted the prime minister's wife as saying: "In view of the illegal occupation of Palestinian land, I can well understand how decent young Palestinians become terrorists."

Mr Marshall-Andrews said: "There is no defence, there is no proviso which is placed in the act which would enable Cherie Booth QC, if the director chose to prosecute her, to defend herself."

Lib Dems being nice and sensible

The Guardian reports

Turning in his speech to proposed new offence of glorifying terrorism - in addition to announced measures on indirect incitement to terrorism and acts preparatory to terrorism - Mr Oaten declared his absolute opposition.

Pacing the stage in the Empress Ballroom as he delivered the speech, he said: "We can't support a wide and vague offence that allows glorification of terror to become a crime.

"What on earth does that mean? One person's terrorist is another's freedom fighter.

Precisely, especially given the unnecessarily broad definition of 'terrorism', and in fact 'glorify'. One also wonders if the phrase 'one man's terrorist is another man's freedom fighter', might itself be crminalised, after all calling someone a 'freedom fighter' sure sounds like 'glorification' to me.

"This is a dangerous proposal hard to define in theory, unworkable in practice and putting freedom of speech at risk."

I agree that it is dangerous, and hard to define. But somehow I doubt it's unworkable. In fact I'd say such a statute, being so indeterminate, could be beautifully workable, inasmuch as it can snare anyone the government wants, provided the judges don't play up.

And, freedom of speech? Hmmm, I oppose 'rights-talk' so...

His speech was repeatedly interrupted by applause from the grass roots, not least when he declared he was "proud to be a liberal in these difficult times because I know our values are the values that can defeat terrorists."

Nicely indicative that it might be possible to get some kind of mass opposition to this rubbish. Though again, the liberal talk is somewhat sickening.

Hopefully, this will be indicative of a trend, The left really doesn't need this bill to be passed, and the stirring amongst the Lib Dems show at least the germs of some kind of counter to this movement. My main worry is that these civil libertarians are going to be horribly compromised by any smears they receive, because we all know accusations will fly about being 'soft on terrorism'.

I mean look at Liberty's constant hedging after the '7/7' (godawful term). They don't want to go too far, lest they offend people, this is the same rationale behind Howard's warning to the judges, once a tragedy happens, criticism is stifled in more ways than one.