Over the past year or so I have been working with my UNSW colleague Fergal F. Davis on a project entitled ‘Critical Debates on Counter-Terrorist Judicial Review’ which was generously funded by the BA/Leverhulme small grant scheme as well as some supplementary funding from USNW and administrative support from Durham HRC. The project has now come to an end, and a summary of the project is available here. The book of the project, which includes some of the world’s leading scholars on the issue, is now available for pre-order from CUP and includes not just this wideranging scene-setting paper from myself and Fergal but also a new paper by me outlining what I call the ‘regulatory constitutionalism’ of superior domestic courts in at least some CT judicial review decisions implicating foreign affairs powers. I look forward to the reaction (!)
Category: Counter-Terrorism
Reflections on the David Miranda Case
The high-profile decision in R (Miranda) v Secretary of State for the Home Department was released earlier this week. In it, the Court affirmed the proportionality of the controversial Schedule 7 powers to stop and question individuals at ports and airports, which includes a power to seize laptops, phones etc. The use of these powers is proportionate, the Court held, even when it interferes with journalistic freedom of expression where such freedom of expression might result in the disclosure of information that could (inadvertently) aid terrorists in some way.
Although there is much to be said on the implications of the case for Schedule 7, the proportionality test, and journalistic freedom (on which see Helena Kennedy QC, Paul Daly, Colin Murray and Mark Elliot), Miranda also raises interesting questions about how we manage secrecy in the counter-terrorist context. This is the element I have been most interested in, and I wrote a short opinion on it for the Oxford Human Rights Hub, which I then republished in longer form on Human Rights in Ireland. The thrust of these posts is:
Journalism—which creates ‘public public’ transparency—may not always have the capabilities to make the kinds of security judgement necessary to assess whether a particular piece of information ought to be in the public domain, but neither ought we allow security agencies to monopolise both the information that we use to assess threats and the decisions as to disclosure. While the judgment in Miranda may please the security sector by its affirmation of the former proposition, the entire affair makes it clear that the latter must be addressed as a matter of urgency.
Managing secrecy (beyond what arises in relation to closed materials in court procedures) is part of counter-terrorism that many legal scholars (including myself) have often avoided dealing with head-on. I am not sure we can do that for much longer and in my next book (which I am just finishing up) I try to tackle secrecy and transparency as matters of constitutionalism; a daunting task!
Reaction to Obama’s Speech on NSA Reform
Following a much-anticipated speech by President Obama outlining the broad parameters of reform of the NSA, I published two columns. The first, in The Conversation UK, emphasised the need to react cautiously to the speech. While, in its tone, the Obama speech suggested a firm embrace of the idea that security and liberty are complementary–rather than oppositional–concepts, the detail in the speech was light. It is that detail that will, of course, allow us ultimately to assess the meaningfulness of the proposed reform.
In a second column, on Human Rights in Ireland, I reflected on the prevention paradigm that continues to frame Obama’s approach to counter-terrorism. Of course, the US is not alone in this; preventing rather than reacting to is a core element of counter-terrorism in the UK and EU as well as in the United States. However, in all cases it is important that we are cautious and aware of the implications of a preventative mentality for decision making, policy making, and operations in the CT field. No real assessment of policy reforms or even legislative measures can be done unless we take the implications of preventativeness into account.
AJCL article extracted in ‘Constitutions, Security and the Rule of Law’
An article that I co-authored with Suzanne Kingston and published in the American Journal of Comparative Law ((2010) 58(2) AJCL 359-413) has been extracted in a collected edited by Sudha Setty, entitled Constitutions, Security and the Rule of Law (2014, iDebate). The full version of the article, entitled “Rights, Security and Conflicting International Obligations: Exploring Inter-Jurisdictional Judicial Dialogues in Europe”, can be downloaded for free here or read on Durham’s online repository here. The book, which features a range of international perspectives, can be ordered here.
Professor Fiona de Londras 