Terrorism is being used to justify a retreat from legal principle
Since September 11 2001 an alarming set of proposals has been gaining credibility. Although they are ideas which have been circulating in neo-conservative circles in Washington for some years, the direct experience of terrorism in the United States has provided the opportunity to rehearse the claim that long-established legal norms are now outmoded. The call for new legal regimes, whether internationally or domestically, is a feature of both the Bush administration and our own government, and the horrifying bombings in Madrid are certain to fuel the claim that such change is necessary to combat terrorism.
The pre-emptive strike doctrine which is at the heart of Bush's foreign policy is now moving into Home Office thinking, with David Blunkett floating the proposal that those who might become suicide bombers, whether British citizens or not, should be arrested on the basis of intelligence and incarcerated before they do anything nasty. They could be tried on a lower standard of proof in secret courts without juries before vetted judges, with hand-picked lawyers to represent them.
The home secretary has been travelling the lecture circuit in India and America, where legal systems are close to our own, to expound the "legal regime change" theories he has absorbed from rightwing Republicans. He is trying to win support for legal changes which would have been untenable only a few years ago. Even at the height of IRA bombing campaigns in mainland Britain and after an attempt to assassinate Margaret Thatcher and her cabinet, lowering the standard of proof was never countenanced.
In the new thinking, the moral component of law is absent, and the very high risk of innocent people losing their liberty is simply "collateral damage". Our own prime minister showed disdain for the approach to justice that every mature democracy once respected, when, in 2002, he claimed that "the biggest miscarriage in today's system is when the guilty walk away unpunished". The premises on which our legal system is founded - the presumption of innocence, open trial, admissible evidence, access to lawyers of choice, rights of appeal and an onerous burden of proof - are now considered old hat.
The retreat from legal principle is there for all to see - the shameless junking of the Geneva convention and of US criminal law in the creation of the legal black hole that is Guantánamo Bay; the side-lining of international law in order to justify the war in Iraq; our own derogation from the Human Rights Act in order to intern non-citizens here in Britain. But the shifts are in no way confined to terrorism. Terrorism simply provides a climate favourable for repressive legislation which would not otherwise be sanctioned. The legal changes then create new paradigms of state power.
It is very easy in the aftermath of terrible events to succumb to the comforting paternalism of politicians who persuade us that the sacrifice of liberty is worth the warm blanket of security. With the taste of fear in our mouths, who are we to mount a challenge? Yet the function of law, providing us with a set of rules when powerful emotions are unleashed, cannot be overstated. Ill-considered laws are counter-productive; they exacerbate distrust among sections of the community and effect terrible wrongs. Perceptions of injustice will alienate many of those Muslims who have no sympathy with terrorists, undermine efforts to isolate the hard core of militants, and handicap intelligence.
But there is another cost. Counter-terrorist laws set up a contagion which seeps into the bloodstream of the legal and political system and plays havoc with the mindset of police officers, lawyers and judges. Standards shift and we begin to lose sight of liberty's meaning in other areas, quite unconnected with terrorism. It is no accident that so many miscarriages of justice took place in the 70s and early 80s, particularly in the Midlands and the Metropolitan police areas, and they were not all related to subversion.
One of the reasons we are seeing a more general assault upon civil liberties in Britain today - reducing trial by jury and the right to silence, introducing previous convictions, extending police powers - is because over three decades we have seen the steady attrition of our thresholds, largely because of the situation in Northern Ireland. We got used to a person having fewer rights and we accepted unprecedented inroads into our own privacy. Our fear lulled our vigilance.
On February 10, within days of Blunkett's speech in New Delhi suggesting the lowering of the standard of proof in terrorist cases, the PM posited the same change for other serious crime such as drug trafficking and organised crime. Muck spreads.