COUNTER-TERRORISM LEGISLATION AND FUNDAMENTAL RIGHTS Vanja Grujic Faculty of Law, University of Brasília, October 2013 Abstract In this article author addresses national security documents of United States (UN) and European Union (EU) and later measures their impact on constitutional and fundamental rights. That is why the paper starts with demonstrations of definitions about terrorism that can be found in most important national and international documents and security strategies. Later, through analysis of documentation, the matter shall come to the power of counter-terrorism legislation in EU and US and lead to presentation of two different 1
Transcript
COUNTER-TERRORISM LEGISLATION
AND
FUNDAMENTAL RIGHTS
Vanja Grujic
Faculty of Law, University of Brasília, October 2013
Abstract
In this article author addresses national security documents of United States (UN) and
European Union (EU) and later measures their impact on constitutional and fundamental
rights. That is why the paper starts with demonstrations of definitions about terrorism that
can be found in most important national and international documents and security
strategies. Later, through analysis of documentation, the matter shall come to the power
of counter-terrorism legislation in EU and US and lead to presentation of two different
1
approaches in understanding counter-terrorism legislation, the ones that authour found
apropriate to be part of the paper and that were also named by the same. Situation on
counter-terrorism legislation in Brazil shall be described just before author concludes that
none of the above described approaacher are solution for current "game on fundamental
rights" and tries to answer the previously presented debate by posing possible solution
and ground point to the future research.
Introduction
Fundamental rights and freedoms were created and fought as
ideals that should have been protected and preserved for many
generations in the future and to give a new frame for
understanding relation between individuals and their governments.
The project called Universal Human Rights is one of the greatest
civilization pride ever made with most amazing diplomatic efforts
performed in the history. Still, with the new world order, better
said globalized order where main goal became to protect its
national sovereignty and integrity, national security passed into
being both – mean and the goal. Considered like that, it has
started to be slowly put before human rights. After first greater
terrorist attack on the soil of United States of America (US), the
things started rapidly to develop in the direction of absolute
protection of the national security which made huge impact on
legal structure of many countries, especially those that have
suffered terrorist attacks. That is why the story on counter-
terrorism legislation has to start with September 11. The
terrorist attacks on US on September 11, 2001, took more than
three thousand lives and changed image of the world. Photos of
2
“burning twins” circled the planet in just couple of hours and
became the symbol of new American “war on terror”, as George W.
Bush named the future compass of American foreign affairs. On the
other side of the Atlantic, European Union (EU) has firmly
denounced the attacks on US and promised all need support to her
alliance over the sea. Furthermore, in the wake of other terrorist
attacks since September 11, such as the Bali bombings of October
12, 2002, the Madrid bombings of March 11, 2004 and the London
bombings of July 7 and 21, 2005, western nations have sought to
consolidate, and indeed to extend upon, this post-September 11
body of counter-terrorism law.
Among many other issues, the statutes sought to define
terrorism, to criminalize acts of terrorism, give wider powers to
intelligence and law enforcement bodies, authorize electronic and
other surveillance of terrorist suspects and to quarantine and
freeze the assets of banned terrorist organisations. In a short
period new laws rose on hundreds maybe thousand of pages and made
a turn point in the legislative system of the countries. Both US
and EU have rapidly after the attacks signed their new Strategies
of Security.
The indicated counter-terrorism legislation, has made impact
on traditional structure and nature of legal principles,
especially when it starts dealing with the impact on human rights.
These include human rights that underline western liberal
democracies such as the right to silence, the rights to freedom of
expression and association and the right not to be detained except
after a fair trial. The impact of these counter-terrorism laws
upon such a principles has been their most controversial aspect.
3
The laws have upset long held understandings of how legal systems
should operate, especially in regard to the treatment of criminal
suspects and the powers given to investigating authorities. Even
before terrorist attacks in US, on World Conference on Human
Rights in Vienna in 1993, some country officials, mostly coming
from Asia, had stated that human rights need to be limited and
that cannot be consider universally. The foreign minister of
Singapore warned that "universal recognition of the ideal of human
rights can be harmful if universalism is used to deny or mask the
reality of diversity."1 Even though Asia and so-called Western
countries don't share same ideological tradition about human
rights, this statement perhaps gives clear affirmation for present
happening in this context. Answer on the question what is more
important, public safety or fundamental rights was more obvious
before. After “war on terror” the answers became not so clear and
doubts rose. Still, statement of Chinese foreign minister that
"Individuals must put the states' rights before their own."2 in
1993, shows that present Asian and “western” thinking are not so
distinct today.
Examination of national and international legal documents
about terrorism is essential research ground point for this work
that aims to sketch a general picture of the new statutory regimes
and to demonstrate their negative effect on fundamental rights.
Even though this type of full analyze would be at least very
rich, the paper in the following Chapters will stay in the frames
of US and EU documentation. However, at the end of the work,
Constitution and National Strategy of Defense of Federative
1 Sen, Desenvolvimento como liberdade, 2010, p. 197.2 Ibid.
4
Republic of Brazil (Brazil) shall be examined in order to show its
relation towards counter-terrorism legislation. Albeit, this part
will have just presentation character, because as it will be
presented, Brazil still doesn't possess clear position on
terrorist issues, nevertheless counter-terrorism legislation. The
work will try to explain counter-terrorism legislations and their
impact on human rights, by presenting and explaining two
approaches - orthodox approach and balancing approach. Differences
between these theoretical explanations are important in order to
show how the main academic writings nowadays are upcoming to the
problem of clear jeopardizing of fundamental rights through legal
documents and jurisprudence. The author will try to remind on
basis of constitutional rights as absolute and theoretical proves
of hazard that overly balancing can cause.
The work will come to conclusion that the limitation of the
fundamental rights in US and EU is obvious and that neither
orthodox or balancing methods can resolve problem of relation
between national security and fundamental rights. The conclusion
will summarize again all the main points of the work and try to
open new ground point possibilities for the future research.
Definitions of terrorism Fighting terrorism is like being a goalkeeper. You can make a hundred brilliant saves but the only shot that
people remember is the one that gets past you.
Paul Wilkonson3
The difficulty in defining “terrorism” is in agreeing on a
basis for determining when the use of violence (directed at whom,
by whom, for what ends) is legitimate; therefore, the modern3 Daily Telegraph, 1992
5
definition of terrorism is inherently controversial. The
contemporary label of "terrorist" is highly pejorative and it
denotes a lack of legitimacy and morality.
“What is terrorism? (....) That is a method whose roots go
deep in the history. Terror means big fear, and even governments
during French Revolution and Soviet Union were using it to control
their population.”4 Such a broad definition of this notion, which
puts it only in the category of not-good, is may be the best start
point in understanding the same. However, there are still many
argues and different opinions, like a famous sentence says "one
man's terrorist is another man's freedom fighter". The best
example of this situation can be seen in interview with Nelson
Mandela where he says:
"I was called a terrorist yesterday, but when I came out of jail,
many people embraced me, including my enemies, and that is what I
normally tell other people who say those who are struggling for
liberation in their country are terrorists. I tell them that I was
also a terrorist yesterday, but, today, I am admired by the very
people who said I was one."5
Determining terrorism is divided in providing legal
definitions on national and international level. On national level
the situation is very diverse, from countries that do not have
definition of terrorism (which is the case of Brazil6) to the
detailed and numerous documents (perfect example are US) that make
their legal body of terrorism most developed in the world.7 In
4 Nye, Kako razumeti medjunarodne odnose, 2006, p. 300.5 Larry King Live, 2000 http://edition.cnn.com/TRANSCRIPTS/0005/16/lkl.00.html6 View Tittle Situation in Brazil, page 14-177 This paper wont enter in specific national definition and in this part will onlygive US, EU and UN review of documents related to terrorism.
against non-combatant targets by subnational groups or clandestine
agents. "8 Further more, the 'war on terrorism' was presented as
the principal fight that is defined through 4D formula: defeat,
deny, diminish and defend. Under the Federal Criminal Code, Title
18 of the United States Code defines terrorism and lists the
crimes associated with terrorism. In Section 2331 of Chapter 113
(A), defines terrorism as activities that: involve violent acts or
acts dangerous to human life that are a violation of the criminal
laws of the United States or of any State, or that would be a
criminal violation if committed within the jurisdiction of the
United States or of any State; (B) “...activities that involve
violent... or life-threatening acts... that are a violation of the
criminal laws of the United States or of any State and... appear
to be intended (i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or
coercion; or (iii) to affect the conduct of a government by mass
destruction, assassination, or kidnapping; and...(C) occur
primarily within the territorial jurisdiction of the United
States...” 9 Subsequently paper will go deeper in counter-terrorism
legislation of US.
The same difficulties in outlining national terrorism, we find
in giving definition of international terrorism and history of
these definitions were characterised for a long time by avoiding a
8 National Strategy for Combating Terrorism, 2003, p. 1, Access www.gpo.gov.9 United States Code, 2006 Edition, Supplement 3, Title 18 - Crimes And Criminal Procedure, Access www.gpo.gov.
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general definition and addressing specific issues instead. It was
the Convention on the Suppression of Financing of Terrorism which
was signed in New York on December 9, 1999, which attempted for
the first time a definition of international terrorism. First
abstract definition was given in Article 2, paragraph 1. b) of the
Convention. The provision refers to "any [...] other act intended
to cause death or serious bodily injury to a civilian, or to any
other person not taking an active part in the hostilities in a
situation of armed conflict, when the purpose of such act, by its
nature or context, is to intimidate a population, or to compel a
government or an international organisation to do or to abstain
from doing any act.”10
International silence has changed after September 11, but
still we can find definitions or try to give the same in UN
documents that date from 1972 and Resolution 3034 (XXVII)11. First
big change after this resolution was adopted by UN General
Assembly in 1994 with "Declaration on Measures to Eliminate
International Terrorism". The Resolution 49/60 (adopted on
December 9, 1994), gave provision that describing terrorism:
" Criminal acts intended or calculated to provoke a state of
terror in the general public, a group of persons or particular
persons for political purposes are in any circumstance
unjustifiable, whatever the considerations of a political,
philosophical, ideological, racial, ethnic, religious or any other
10 Convention on the Suppression of Financing of Terrorism, 1999, Access www.gpo.gov.11 "Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardises fundamental freedoms, and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievanceand despair and which cause some people to sacrifice human lives, including their own, inan attempt to effect radical changes"
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nature that may be invoked to justify them. "12
This formulation expressly excludes "good causes" as
justification for terrorist activities and attempts to establish
that a person committing certain criminal acts may (or even: must)
be considered everyone's terrorists even if he or she is someone's
freedom fighter or someone else's law enforcement agent. This
tendency is not without fall-backs which are mainly due to the
situation in the Middle-East and last until today. The summary of
the discussions in the Ad-hoc Committee of the General Assembly in
2000 states that "several delegations stressed a need to
differentiate between terrorism and the legitimate right of
peoples to resist foreign occupation." 13
UN Security Council will adopt Resolution 1566 in 2004 and
gives a definition of terrorism as "criminal acts, including
against civilians, committed with the intent to cause death or
serious bodily injury, or taking of hostages, with the purpose to
provoke a state of terror in the general public or in a group of
persons or particular persons, intimidate a population or compel a
government or an international organisation to do or to abstain
from doing any act. "14
In European Security Strategy, terrorism for which "Europe is
both a target and a base (...) It arises out of complex causes.
These include the pressures of modernisation, cultural, social and
political crises, and the alienation of young people living in
foreign societies. This phenomenon is 12 Measures to eliminate international terrorism, GA Resolution A/RES/49/60, UN GAOR, 29th Session, 9
Decembre 1994, Supp. (No. 49) at 303, U.N. Doc. A/49/49 (1994). 13 Walter, Defining Terrorism in National and International Law , 2003, p. 15.14 Threats to international peace and security caused by terrorist acts, SC Resolution 1566, 5053rd Meeting, S/RES/1566 (2004), Access UN Readex.
Additionally, in Article 1 of the "Framework Decision on
Combating Terrorism" (2002) the terrorist offences are certain
criminal offences set out in a list comprised largely of serious
offences against persons and property which:
" (...)given their nature or context, may seriously damage a
country or an international organisation where committed with the
aim of: seriously intimidating a population; or unduly compelling
a Government or international organisation to perform or abstain
from performing any act; or seriously destabilising or destroying
the fundamental political, constitutional, economic or social
structures of a country or an international organisation." 16
Whether the definition explicitly references ‘‘political,
religious or ideological’’ motivations (as does the United Kingdom
definition) or whether it is framed in terms of intimidating a
population or a government so as to effect policy changes (as does
the United States definition), these definitions have the
potential to criminalize a range of political activity, such as
civil disobedience, public protest and industrial action.17 The
widest definition is, the impact on fundamental rights can be
grater, which this paper will try to present from the legal point
of the view.
European Counter-terrorism Legislation
15
A Secure Europe in a Better World. European Security Strategy, 2003, Strasbourg cedex.16
Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA),Official Journal of the European Communities L 164/3, Access Strasbourg cedex.17 Golder and Williams Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism, 2006, p. 47.
10
The European Security Strategy (ESS), was adopted in 2003 and
can be characterised as a ‘child of one's time’, constructed under
the political pressure generated by the war in Iraq. First
sentence of the Strategy says: “Europe has never been so
prosperous, so secure nor so free. The violence of the first half
of the 20th Century has given way to a period of peace and
stability unprecedented in European history.”18 ESS not only did
the invasion proceed without a UN mandate, it also created a
“general crisis of confidence in both the EU and NATO.”19 Even
though big terrorist attacks are less likely to happen on the
European soil, ESS takes fight against terrorism and terrorist
attacks as a key menace to the international and European
security. This can be explained by the fact that Europe once more
showed friendship (or dependence) to its ally across the Atlantic.
It is also important to note that the EU adopted the ESS at a time
when it was consisted of 15 member states. Now, ten years later,
the EU has grown to 28 member states. Accordingly, almost half of
the member states have not had a chance to influence the ESS,
prompting scholars to question both its legitimacy and its
relevancy. Their main arguments are that the ESS of 2003 is
outdated, does not connect threats, ends and means and is too
vague on common interests and the EU’s ambitions.20 Furthermore,
the ESS has been both praised and criticised for being relatively
short, only 16 pages. Scholars criticise the ESS for only
18
A Secure Europe in a Better World. European Security Strategy, 2003, Strasbourg cedex.19
Bailes, The European Security Strategy: An Evolutionary History, 2005, p. 9. 20 Drent and Landman, Why Europe needs a new European Security Strategy, p.1.
11
providing a method, while neglecting other important features such
as what to do.21 It has also been scrutinized for being vague on
several key points. However, it has also to receive praise for
being able to integrate the views of 15 states into one document.
The ESS is organised in three parts: analyses of security
environment, definition of three strategic objectives and
evaluation of policy implications for Europe. It primarily gives a
response to five perceived threats and challenges that the EU
faced in 2003, and continue to face: terrorism, proliferation of
weapons of mass destruction, organised crime, regional conflicts,
and state failure.
However, analysis of security environment gives us good ground
point in talking about importance and impact of this document on
fundamental rights. Modernisation and globalisation put concept of
classical security to another level, as it stands in the document
“the development of technology and the spread of democracy have
brought freedom and prosperity to many people. Others have
perceived globalisation as a cause of frustration and injustice.
”22 In other words, democracy and globalisation put human rights in
the centre of Western societies. Question is, are they inviolable
or there is a logic and practice in putting limits to the symbols
of modern constitutions. Better asked, can the constitutional
rights be changed and abrogated in order to fulfill higher public
matter as a national security?
To answer this question, we have to look at the previous,
historical experience of European legal practice. The Holocaust
21 Biscop, A New External Action Service Needs a New European Security Strategy, p. 1. 22
A Secure Europe in a Better World. European Security Strategy, 2003, Strasbourg cedex.
12
made it abundantly clear that domestic guarantees could not ensure
protection of human dignity against abusive governments. In
response, the United Nations and regional intergovernmental
organisations established standards and mechanisms designed to
ensure that such abuses would not be repeated. In 1950, the
Council of Europe adopted the European Convention on Human Rights
and Fundamental Freedoms (ECHR), the first and most effective
system of protecting individual rights under international law. It
set up a system of rights, the European Court of Human Rights, as
well as specific limitations of the same rights. The succeeding,
more pertinent concept of limitations on rights, pertains to the
specific limitation clauses provided for in the Convention. There
are three types of limitation clauses in the ECHR:
(1) Limitations attached to a provision of a right for certain
prescribed purposes (e.g., national security, public safety,
health, morals, rights of others, etc.);
(2) Limitations referring to certain activities (e.g., political
activity of aliens, activities subversive of Convention rights);
(3) Limitations referring to the suspension of a group of rights
during public emergencies threatening the life of a nation (e.g.,
war, earthquake, etc.). 23
For our examination the first group of limitations is most
interesting as it affects the rights guaranteed in Articles 8
through 11 of the Convention.24 The terminology used to authorize
limitations for certain prescribed purposes is more or less
similar in each article, and the pertinent case law of the
23
European Convention on Human Rights and Fundamental Freedoms, Council of Europe F-67075, 1950, Strasbourg cedex .24 Look at http://www.echr.coe.int/Documents/Convention_ENG.pdf
13
Commission and the ECHR is exceptionally rich and developed.
Article 8, the right to respect for private and family life, home,
and correspondence, states in paragraph 2:
“There shall be no interference by a public authority with the
exercise of this right, except such as in accordance with the law
and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of rights
and freedom of others.”25
Restrictions must have an adequate basis in domestic law and
the domestic law must satisfy the Convention requirements. The
same rhetoric has been kept in the Charter of Fundamental Rights
in EU (CFREU). In Chapter VII, Article 51, stands:
1.The provisions of this Charter are addressed to the
institutions and bodies of the Union with due regard for the
principle of subsidiarity and to the Member States only when they
are implementing Union law. They shall therefore respect the
rights, observe the principles and promote the application thereof
in accordance with their respective powers.
2. This Charter does not establish any new power or task for
the Community or the Union,
or modify powers and tasks defined by the Treaties.26
The Council of Europe has given its member states similar
guidance when on the July 11, 2002 it had adopted Guidelines of
25 European Convention on Human Rights and Fundamental Freedoms, Council of Europe F-67075, 1950, Strasbourg cedex.26 Charter of Fundamental Rights in EU, Official Journal of the European Communities,2000/C 364/01, Strasbourg cedex.
14
the Committee of Ministers of the Council of Europe on Human
Rights and the Fight Against Terrorism (Guidelines). The preamble
to the Guidelines recognized that ‘‘it is not only possible, but
also absolutely necessary, to fight terrorism while respecting
human rights, the rule of law and, where applicable, international
humanitarian law’’.27 The Guidelines also suggest approaches on
specific fundamental rights issues and in order to tackle them it
establishes a hierarchy of rights. For example, while the
Guidelines state that ‘‘The use of torture or of inhuman or
degrading treatment or punishment, is absolutely prohibited, in
all circumstances’’, they also provide in Article 6 that a
person’s right to privacy may be interfered with.28 On the other
hand, exactly two months after the attacks on US, the United
Kingdom (UK) Government introduced an "Order" announcing that
because of the threat of terrorism it no longer intended to uphold
the right to liberty under the European Convention on Human Rights
in certain terrorism-related circumstances. This only shows that
EU decisions and documents are highly limited and depending on the
political will of the state-member to incorporate its decision in
their legislative body. However, this paper wont enter in the each
member-state counter-terrorism legislation study case due to limit
of space, nevertheless, that kind of analysis would be compelling.
27 Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight Against Terrorism, Strasbourg cedex.
28 Golder and Williams Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism, 2006, p. 49.
15
Counter-Terrorism Legislation in US
Strangely enough, the United States Constitution has been the
best export article in a country whose business is business.29 It
has influenced many other constitutions, not only with respect to
its Bill of Rights, but also with respect to fundamental
structuring of authority, such as federalism, separation of powers
and judicial review. For example, the First Amendment guarantees
that "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances."30 The Constitution loud and clear gave
orders that those human rights need to be respected and that
Congress as legislative power cannot change it. Thus, it was left
to the Supreme Court to formulate the limits. In drawing these
limits, the Supreme Court did not try to codify limitations in a
general and abstract sense. Instead, it followed a more pragmatic
approach, guided as much by the country's common law tradition as
its deep distrust of government, the Court developed a case-by-
case jurisprudence that strikes a balance between individual
rights and interests of the community.31
Similarly, the equal protection clause was differentiated out
into quite disparate "standards of review." The highest standard,
"strict scrutiny," requires the demonstration of a "compelling
29 Pati, Rights and their limits: The Constitution for Europe in International and Comparative Legal Perspective , 2005, p. 231
30 US Constitution, Bill of Rights, Access www.gpo.gov.31 Pati, Rights and their limits: The Constitution for Europe in International and Comparative Legal Perspective ,
2005, p. 233
16
governmental interest" for differential treatment, and the "narrow
tailoring" of the means to achieving the end of this governmental
objective. This standard was reserved for discrimination on the
basis of race or ethnic origin, or if certain "fundamental
rights," such as the right to vote or the right to travel, were
involved.32 Accordingly to examples given above, it can be seen that
there is no general doctrine of limitations upon rights under US
constitutional jurisprudence. Courts impose and affirm limits in
response to the particular circumstances and duly independent
cases, with the judge as the ultimate weigher and cutter of
constitutional rights. Their ideas about rights and limits
therefore have more general and abstract nature.
Already with tradition of balancing constitutional rights by
jurisprudence, US body of fundamental rights was finally struck
and ultimately changed after September 11. On October 25, 2001,
just a little more than one month after the attack, The USA
Patriot Act: Preserving Life and Liberty (Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism)33 was signed and adopted by
Department of Justice. United Nations in their 1368 Resolution
clearly stated that "The Security Council, Reaffirming the
principles and purposes of the Charter of the United Nations,
Determined to combat by all means threats to international peace
and security caused by terrorist acts (....)"34. This UN policy was
strengthened in Resolution 1373 by "Reaffirming the need to combat
32 Ibid.33 USA Patriot Act: Preserving Life and Liberty (Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism), 2001, Access www.gpo.gov.34 Afghanistan, SC Resolution 1368, 4443rd meeting, S/RES/1386 (2001), Access UN
Readex.
17
by all means, in accordance with the Charter of the United
Nations, threats to international peace and security caused by
terrorist acts"35
The USA Patriot Act (Act) was the immediate legislative
response to the attacks of September 11, 2001. It is primarily
directed towards the detection and investigation of terrorist
activities. It amends various items of existing legislation to
provide for this. In Title VIII "Strengthening the criminal laws
against terrorism" of the Act, numerous definitions are given for
domestic, international terrorist, new terrorist offences are
introduced and all the penalties for those who commit terrorist
crimes are increased.36 Act also updated the law to reflect new
technologies and new threats, such as allowing law enforcement
officials to obtain a search warrant anywhere a terrorist-related
activity has occurred, and providing victims of computer hacking
with the ability to request law enforcement assistance in
monitoring the “trespassers” on their computers.
Succeeding, an apparent internal leak from the Central
Intelligence Agency (CIA),37 the media in the US learnt and
published information about “enhanced interrogation techniques”,
such as waterboarding, used by the CIA in its interrogation of
terrorist suspects and possibly other persons held because of
their links with such suspects. By executive order of July 2007,
the CIA Director required that interrogation practices are “safe
for use”, based upon professional advice, and that there will be
35 Threats to international peace and security caused by terrorist acts, SC Resolution 1373, 4385th meeting, S/RES/1373 (2001), Access UN Readex.
36 Uniting and strengthening america by providing appropriate tools required to intercept and obstruct terrorism (USA Patriot Act), Public law 107–56—oct. 26, 2001, 107th Congress, p. 104, Access www.gpo.gov.
37 See http://www.cbsnews.com/8301-503543_162-6146610-503543.html
18
effective monitoring of the CIA interrogation programmes. Also,
Ministry of Defense in 2005 introduced 'Detainee Treatment Act of
2005 ' where in Section 1002 stands:
(a) In General- No person in the custody or under the effective
control of the Department of Defense or under detention in a
Department of Defense facility shall be subject to any treatment
or technique of interrogation not authorized by and listed in the
United States Army Field Manual on Intelligence Interrogation.
(....) (c) Construction- Nothing in this section shall be
construed to affect the rights under the United States
Constitution of any person in the custody or under the physical
jurisdiction of the United States. 38
This was the first big issue that US Goverment had to explain
to the public. Second is the question of preventive detention. The
Fifth Amendment to the United States Constitution clearly states:
"No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public
danger; (...)"39
Furthermore, the right to a speedy trial is guaranteed to
criminal defendants by the Sixth Amendment to the US
Constitution.40 A "speedy trial” basically means that the
defendant must be tried for the alleged crimes within a reasonable
time after being arrested. Although arrestees cannot be held
without formal charges for an unreasonable amount of time, the
38 Detainee Treatment Act of 2005, part of the Department of Defense Appropriations Act of 2006 (Title X, H.R. 2863), United States Congress, 2005, p. 1-2, Access www.gpo.gov.39 US Constitution, Amendment 5, Access www.gpo.gov. 40 US Constitution, Amendment 6, Access www.gpo.gov.
19
Constitution does not spell out what this time is. Instead, these
are typically set forth by state law, and the time period differs
from state to state. Even though clear constitutional rights,
preventive detention was not only the practice in combating
terrorism and counter-terrorism legislation, it was even raised to
the point to be indefinite. The National Defense Authorization Act
(NDAA), an otherwise mundane annual bill that lays out the use of
funds for the Department of Defense, has come under attack during
the Obama administration for the introduction of a provision in
2012 that allows the military to detain US citizens indefinitely
without charge or trial for mere suspicions of ties to terrorism,
under the 2012 NDAA’s Section 1021 (Affirmation of authority of
the armed forces of the United States to detain covered persons
pursuant to the authorization for use of military force)41. US
President Obama did not agree to give the military the power to
arrest and hold Americans without the writ of habeas corpus as he
promised with that year’s signing statement that his
administration would not abuse that privilege. On December 4,
2012, the Senate unanimously passed the bill and added in Section
1033 the Feinstein-Lee NDAA Amendment which states: "An
authorization to use military force, a declaration of war, or any
similar authority shall not authorize the detention without charge
or trial of a citizen or lawful permanent resident of the United
States apprehended in the United States, unless an Act of Congress
expressly authorizes such detention."42 Even though Obama's
political discourse is around human rights and among all the
41 National Defense Authorization Act For Fiscal Year 2012, Report 112-479, H.R. 1540, UnitedStates Congress, 2011, Access www.gpo.gov. 42 Feinstein-Lee NDAA Amendment, No. 3018, US Senate. 2012, Access www.gpo.gov.
20
things closing Guantamo Bay naval statation, he signed 2013 NDAA,
that in Section 1036 prohibits the Secretary of Defense from using
funds available to the Department of Defense for fiscal year 2013
to transfer or release detainees at U.S. Naval Station, Guantanamo
Bay, Cuba, to or within the United States, its territories, or
possessions.43 It is very important to mention that president of
the US has a right to veto NDAA document.
Different approaches in understanding Counter-
terrorism Legislation
As the paper showed previously, the counter-terrorism policies
vary in different legal documentation, but its relation in
practice towards human rights mostly stays the same – the impact
on the same is inevitable. Therefore, the theory is also trying to
present and explain this type of relation by defining different
approaches in understanding counter-terrorism legislation that has
rapidly developed in last twelve years. In order to stay clear and
understandable, the author chose two approaches that found
appropriate to be part of this paper.
First one is conservative or orthodox approach. The orthodox
way in its analysis has a method of protecting either national
security, or civil liberties, as if the protection of one
undermines the protection of the other. As a little different
approach, shall call it conservative, it can be presented
Ruddock's understanding of counter-terrorism legislation. He
starts from very clear thesis - human security is a necessary43 National Defense Authorization Act For Fiscal Year 2012, Report 112-479, H.R. 1540, UnitedStates Congress, 2011, p. 233, Access www.gpo.gov.
21
precondition to the exercise of all other human rights. Thus,
whenever national governments enact counter-terrorism legislation
in the pursuit of human security, even if that legislation
derogates from accepted rights and freedoms in the process, it is
ultimately beneficial legislation because by promoting human
security it is ‘‘preserving a society in which rights and freedoms
can be exercised’’.44
The public and individual security is important part of human
rights and fundamental freedoms. Thus, protecting this right
cannot mean violating it at the same time. In other words,
counter-terrorism legislation shouldn't be seen as black and white
image where human rights and national security are opponent to
each other. However, the view that comes from Ruddock is very
questionable. He is putting right for individual and public, human
security as a necessary precondition for the exercise of all other
human rights. The questions we can make on this assumption would
be firstly why is justified to reduce one or couple human rights
in order to fulfill other human right, and if we do provide legit
answer, what institution is going to fortify up to what extension
the reduction of one or couple human rights is enough? Those
questions stay without reply in the writings of legal scholars
that are supporting this approach on counter-terrorism
legislation. Like it is mentioned in the Introduction, weighing
the human rights and fundamental freedoms is not only against
theory and raison d'être of the institution of the fundamental rights,
but theoretically impossible and morally wrong. No institution or
a person cannot say one human right is more valuable or important
44 Ruddock cited in Golder and Williams Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism, 2006, p. 51.
22
than the other. That would mean that the documents like
Constitution or Declaration of Human Rights would be interpreted
differently in each case and lead to depending on the subjectivity
of the court or the judge in individual matters and make judicial
assessment as the primer source of the law. Moving in that
direction the process could come to the point of complete moral
requisitioning which would mean loosing the impartiality of the
court. For example, we can decide that impinge of the right to the
privacy in order to gain important information about terrorist
attacks and stop possible future catastrophe and protect people,
is justified. We can decide, as scholars or citizens, but also as
a judge or a court, which means we all agree on it. Now, lets
imagine different situation. It is asked that right to human
security prevails over human right against torture or indefinite
detention without trial. Would you agree that some person can be
interrogated and kept in jail for indefinite time without being
charged, which means that after some years or months he or she
could be just released as innocent? If we cannot be sure what
fundamental right is "better" and more important, than we or any
other institution cannot hold scales and weigh any of our rights
that we hold as the citizens and as the human beings.
Before explaining the second, balancing approach, we shall
review the theory of constitutional rights. In the global legal
world, it is becoming increasingly recognized that every modern
legal system is made up of two basic kinds of norms: rules and
principles.45 These are applied by means of two different
procedures: subsumption and balancing. While rules apply by means
of subsumption, balancing is the means of applying principles.45 See Alexy, A theory of Constitutional Rights, translation Julian Rivers, 2002.
23
Balancing therefore became an essential methodological criteria
for adjudication, especially in case of constitutional rights. The
debate on balancing as a moral and legal approach are numerous,
but two main questions that are always requestioned and re-
examined are first juridico-philosophical question that refers on
the nature of balancing, whether it is a rational procedure for
applying norms or a mere rhetorical device. Second question is
relevant from the point of view of constitutional rights and laws
is the question of the legitimacy of the judge as the balancer,
especially when the judge doesn't have sufficient constitutional
standing to apply principles from this standpoint, and that when
he does so, he unduly restricts and even usurps other powers
enshrined in the constitution. Moreover, the critique of Habermas
would be most interesting to our work and it is that the balancing
approach deprives constitutional rights of their normative power.
By means of balancing, he claims, rights are downgraded to the
level of goals, policies, and values. They thereby lose the
"strict priority" that is characteristic of "normative points of
view".46In this point of critique we can again turn to the problem
mentioned before, problem of comparing and weighting fundamental
rights. To use words of Alexy, "constitutional rights norms are
considered as ruled that are applicable, in essence, without
balancing."47 This work wont enter in the detailed nature and
features of balancing, nevertheless it will use one strong
argument regarded to this approach, the argument of rationality.
Again, the work is not going to explain rationality distinctly,
even though that is very interesting approach in observing this
46 Habermas cited in Alexy, Constitutional Rights, Balancing and Rationality, 2003, p. 134.47 Alexy, The Construction of Constitutional Rights, 2010, p. 2.
24
issue.
The balancing approach comes as a middle way between orthodox
and conservative. Authors that are writing about it are commonly
found as more realistic and objective than the others. They saw
the same flaws we previously discussed and share thesis that
impact on the fundamental rights is already happening and that it
is a part of the modern politics and international security
strategies, thus the process have already gone to far to be
corrected and the best thing it can be done is to accept facts and
institutionalise balancing of the human rights and fundamental
freedoms as a part of democratic processes. In order to present
this approach better, this paper uses the balancing method of B.
Golder and G. Williams like it is described in their paper
Balancing National Security and Human Rights: Assessing the Legal Response of Common
Law Nations to the Threat of Terrorism. In their work are examined the
counter-terrorism legislation systems in Australia, New Zealand,
South Africa and United Kingdom and the conclusion they come up
with is that the fundamental rights of the citizens in those
countries are impinged due to legal system made mostly after
September 11 (in some countries like New Zealand and United
Kingdom was even earlier). According to their research, the rule
of law as embodied in nations such as Canada, South Africa and the
United States requires that all laws be subject to assessment for
their compliance with constitutional norms. In such a forum,
balancing can play a key role and they argue that the proper
method for assessing the new counter-terrorism laws, from a human
rights perspective, is to adopt a ‘‘balancing approach’’ according
to which the importance of the relevant human right is weighed
25
against the importance of the societal or community interest in
deciding whether to take legislative action (or, from the position
of a judge, in deciding whether a certain law is valid).48
According to Golden and Williams, weighting between national
security and constitutional rights is not only happening in many
countries, but it also abuses rights in a great deal. Historical
and contemporary examples of the abuse of the rights of minority
groups in times of perceived threats to national security are
rife, and indeed, as the infamous United States case of Korematsu v.
United States demonstrates, even the presence of a domestic Bill of
Rights is no guarantee of the protection of minority rights.49 In
balancing approach security concerns versus human rights
protections, must state exactly whose rights will be affected by
the proposed measure. This makes no difference than already
existing hierarchy of rights in European Guidelines. Besides,
balancing under such a hierarchy, impact on rights is still
occurring. The concept of balancing stays at the heart of many
theoretical and practical discussions.
Situation in Brazil
This part will try to present Brazilian position towards
counter-terrorism policy as an interesting finishing chapter as
Brazil is one of the biggest countries and economies in the world
and it doesn't possess the legislation on counter-terrorism, yet.
48 Golder and Williams, Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism, 2006, p. 44.49 Ibid., p. 58.
26
In the National Strategy of Defense of Brazil, word terrorism is
mentioned only ones in the part International Participation:
All State’s instances should contribute to the rise of the
National Security level, particularly emphasizing: (...)
- the prevention of terrorist acts and of massive attacks against
the Human Rights, as well as the guiding of counter-terrorism
operations, under the responsibility of the Ministries of Defense
and of Justice, and the Institutional Security Cabinet of the
Presidency (GSI/PR).50
This perfectly illustrates the situation on counter-terrorism
legislation in Brazil, better said, no existence of the same.
There is no classification of what constitutes terrorism. In other
words, terrorism is not in the law.51 In US Country Report on
Terrorism for year 2012, part Legislation, Law Enforcement, and
Border Security, says that in the same year Brazilian Chamber of
Deputies considered two counterterrorism bills pending in
committee; one would deny visas to persons convicted or accused of
a terrorist act in another country, and the other would provide
the ability to prevent, investigate, and prosecute terrorist
organisations.52 It is also interesting that terrorism in
Brazilian Constitution is mentioned once, in Title II -
Fundamental Rights and Guarantees, Article 553, norm XLIII:
"The practice of torture, the illicit traffic of narcotics and50 National Strategy of Defense, Peace and Security for Brazil, 1st Edition, 2008, p. 65, Access
www.gov.br. 51 Law Number 7.170, in Article 20 contains words 'terrorist act' in the body of the
text, but just as the part of examples of other types of crimes, like kidnapping, robery, vandalize etc. Access www.brasil.gov.br.
52 Country Reports on Terrorism 2012, Access www.gpo.gov.53 "All persons are equal before the law, without any distinction whatsoever,Brazilians and foreigners residing in the country being ensured of inviolability of theright to life, to liberty, to equality, to security and to property, on the followingterms:"
27
related drugs, as well as terrorism, and crimes defined as heinous
crimes shall be considered by law as non-bailable and not subject
to grace or amnesty, and their principals, agents, and those who
omit themselves while being able to avoid such crimes shall be
held liable;"54
In the Chapter III - Public Security, Article 144 says: Public
security, the duty of the State and the right and responsibility
of all, is exercised to preserve public order and the safety of
persons and property (...).55 This shows human security as the
fundamental right and duty of the State. But still, it is not
enough to open discussion about relation between counter-terrorism
laws and fundamental rights in this country. In Brazilian
Constitution, terrorism is presented together with traffic of
narcotics and torture, which is very important to understand the
problem Brazil has with defining this notion. According to
Guimarães, Brazil has not suffered actual terrorist attacks in the
latest period.56 Absence of attacks like those in US and EU may
explain why this matter seams so distance and less important than
domestic security. Still, even though neutral position of Brazil
in recent international conflicts, the risk of terrorist attack is
still in the air. The risk is getting bigger especially now with
the big events Brazil is yet to organize, because terrorist don't
aim their targets only in their domestic countries, but sport
players and journalist wouldn't be attacked for the first time.
Guimarães further reminds us that there is another form of
54 Constitution of Federative Republic of Brazil, version in English language, Access http://english.tse.jus.br/arquivos/federal-constitution, p. 18.
55 Ibid,, p. 106.56 Guimarães cited in "Tratamento penal do terrorismo no Brasil", Jordânia Freitas da Silva,
criminal organisation, rather called 'Brazilian', which shows much
less organised and seems to rely on the direct participation of
agents, based on commands of organised criminals, e.g. large riots
in prison, commanding narcotics trafficking from prisons, etc.
Respectively the same author, these criminal groups, although they
are not structured as notorious criminal organisations, referred
to by specific names, but not without some organisation and
spreading terror by various sectors of society and the government,
if using, on occasion, practice quite similar to terrorist
attacks. This is the case, among others, the performances of the
Comando Vermelho in Rio de Janeiro and the Primeiro Comando da Capital in
Sao Paulo.57
Other conserning fact is the public security legislation that
dates from time of military regime. Law number 4.878, from
December 3, 1965, talks about public security. It is interesting
that Title X (Detention) of the Law, says "detention, that cannot
exceed 90 days (...)"58. Nevertheless, in Title XII of the same
Law, Article 58, stands:
"The Board of Police, taking into account the impact apparel, or
its circumstances, may, by notice of its President, enjoy the
disciplinary trespasses punishable by penalties reproach,
suspension until thirty days and disciplinary detention within
twenty days."59 LEI Nº 4.878, DE 3 DE DEZEMBRO DE 1965.
That means one can be detained up to 3 months just if it is
57 Ibid.58 Law Number 4.878, 1965, LEI Nº 4.878, DE 3 DE DEZEMBRO DE 1965, free translation by
the Author.59 Ibid. original text of the Law - Art. 58. Os Conselhos de Polícia, levando em conta a
repercussão do fato, ou suas circunstâncias, poderão, por convocação de seu Presidente, apreciar as transgressões disciplinares passíveis de punição com as penas de repreensão, suspensão até trinta dias e detenção disciplinar até vinte dias.
By the way of conclusion main ideas of this work shall be
presented. Examination of documentation in this work was focused
only to help understanding laws and documents concerned about
national security, especially the ones to combat terrorism. The
terrorist activities are probably the toughest, if the one has to
make comparation between different crime activities. Too many
innocent lives were lost in order to make political, ideological
or religious point. Human security is indeed the basic of our
rights, because if we are not protected, logically we cannot
practice the rest of our rights. Still, does that mean that our
Governments and international community have right to comply and
limit all other rights in order to protect one?
Giving reasons for this is very hard because there are many
arguments addressed in different cases. That is why jurisprudence
doesn't have one doctrine, one method to obey and serve. Thus,
each case that confronts right to human security to another
fundamental right, is in the free hands of the judge. Balancing
comes as rational, natural approach. Rationality is in the centre
of balancing theory and requires rational law discourse to make
balancing acceptable, for the reason that if the balancing were by
its nature irrational, it would have to be rejected, and with it,
principles qua norms that require something irrational.63 On the
other hand, Habermas will be very sure in his critique saying that
there are no rational standards for balancing 'because there are
no rational standards for this, weighting takes place either
63 Alexy, The Construction of Constitutional Rights, 2010, p. 7.
32
arbitrarily or unreflecrively, according to customary standards
and hierarchies.64 Therefore, balancing can be or doesn't have to
be rational, but it is reality of the new world order, especially
in new security order.
As it has been shown, both approaches don't represent final
solution. As citizens, we cede a measure of our rights and
liberties to the State in order to secure the common good. Thus,
in this utilitarian understanding of counter-terrorism
legislation, the interests of national security and the protection
of human rights are placed at opposite ends of the conceptual
spectrum (...).65 Indeed, the weight of human right should be
measured at its end, in the state law. Observed as that,
constitutional rights are closely connected to human rights, which
is the reason that in this work both human and constitutional
rights were used on the same level. Many democratic nations have
followed the US model in enshrining certain rights in their
constitutions. Countries whose written constitutions include a
bill of rights include Germany, Indian and Japan, but most of
democratic constitutions incorporate human rights in their text in
high level. Universal Declaration of Human Rights has been
proclaimed by UN on December 10, 1948, which was 65 years ago. We
cannot ignore the fact that the world is changed since more than
half a century ago. If we assent the situation as that, the
possibility to answer on its challenging problems, would be to
change the character and documents of human rights. This is at
least very interesting idea to examine in the future, and as one
64 Habermas in Alexy, The Construction of Constitutional Rights, 2010, p. 8.65 Golder and Williams Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism, 2006, p. 50.
33
academic example of the work on this matter, I shall mention
Universal Declaration of Emerging Human Rights (UDEHR) that was
conducted on Human Rights Institute of Catalonia in 2004. This
Declaration involves a new conception of citizen participation and
conceives the emerging rights as citizen rights.66 That would also
mean incorporation of human rights in a great many constitutions.
The value of freedom in the democratic liberal societies depends
on the capacity to maintain the balance between the individual
freedom in one way and the rest of the rights, the guarantee of
which comes to limit these freedoms in one way or another.67 This
'value' according to Emerging Rights argument, should be included
in the text od Declaration and in the Constitutions, which makes
balancing more limited and defined. Perhaps this different
approach to counter-terrorism legislative in relation to
fundamental rights, could inspire Brazilian authors in order to
change its neutral observing of this legal issue.
66 Draft of Charter of Emerging Human Rights, Institut de Drets Humans de Catalunya , 2009, p.4, www.idhc.org .
67 Ibid., p. 9.
34
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