The law behind... Terror

Justice on trial:
Guantanamo Bay

As IT is well known, the US government chose the Cuban base at Guantanamo Bay, on the advice of its lawyers, because it was intended to be a legal black hole, beyond the reach even of international law. Perhaps less widely appreciated is the fact that what eventually secured the detainees rights to access the US courts was the impermissible discrimination made between US and foreign prisoners. While seeking to deprive foreign Guantanamo detainees of all legal rights, the US would not countenance the same for its own citizens. The Supreme Court in Rasul v Bush, however, held that "there is little reason to think that Congress intended the geographical coverage of the [habeas corpus] statute to vary depending on the detainees citizenship".

Since the Supreme Court ruling, the US government has sought, by attempting to classify them as unlawful (not enemy) combatants, to deny Guantanamo Bay detainees their minimum international law protections under the Geneva Conventions no doubt motivated partly by its concession that prisoners of war under those conventions cannot be tried before the military commissions it has specially convened.

Military commissions were last used in the Second World War. A trial before the commission commences 30 days after President Bush declares he has "reason to believe" a detainee is guilty of a terrorist offence. Some detainees such as Salim Ahmed Hamdan from Yemen, captured in Afghanistan in late 2001, alleged to have been Osama bin Ladens driver and who is facing charges of conspiracy to commit war crimes, including attacking civilians, murder and terrorism have been held for more than two years without charge, often in solitary confinement, and consequently may now be unfit to stand trial at all. Any evidence, including that obtained by torture, is admissible at trial. Prisoners are entitled to military counsel or to retain US civilian defence attorneys but may not consult with the latter, nor are there public funds available to pay them. The judges and jury are military officers appointed by the Defence Department, as are the prosecutors. The only appeals available are a right of review by more military judges and then to Bush who has already described the detainees as "killers".

It is particularly hypocritical that the US is so determined to circumvent the Geneva Conventions international law protections when it relied so heavily on them to protect captured

US soldiers in Vietnam, Korea and Somalia. Even Saddam Hussein granted US captives prisoner of war (PoW) status during the Gulf War. The USSR also afforded Mujahidin fighters, many of whom went on to become part of, or to father, the Taliban, their basic PoW human rights.

The Third Geneva Convention provides that, if there is any doubt as to whether a captive is a PoW, he is entitled to the protection of the convention until his status has been determined by a "competent tribunal". A Federal Court judge last November was nevertheless forced to remind US government lawyers that "the President is not a tribunal". US lawyers had also advised that the detainees status was indisputable, even though the detainees have always denied they are unlawful combatants. They also contended that there were two wars in Afghanistan, one against the Taliban and another against al-Qaeda, and that the latter were not a party to the Geneva Convention.

It is tempting just to blame incompetent government lawyers, but perhaps the US approach is best illustrated by the fact that when Washington was informed of White-halls initial legal doubts about the War in Iraq, for example, it simply told London to "find new lawyers". Indeed, undeterred by the US court rulings to date, the Pentagon is reportedly seeking $25m (13.4m) to build a permanent prison for 200 of the Guantanamo Bay prisoners: apparently the plan is to incarcerate indefinitely those detainees against whom there is not even sufficient evidence for a military commission to convict, but whom the US government contends are likely to plot terrorist attacks in the future.

US courts have not yet decided whether all the commissions procedures (including the use of evidence obtained by torture) meet international fair trial standards. As our Attorney-General noted when obtaining assurances that UK prisoners would not be executed (a process which, Lord Steyn thought, "gives a new dimension to the concept of most favoured nation treatment in international law"), they do not. Guantanamo hearings were halted last year when the Columbia District Court refused to permit the exclusion of a detainee from his own trial while classified evidence against him was adduced before the military commission.

Common law war courts or specially adapted procedures for dealing with alleged terrorists, where the accused is absent from at least part of his own trial, are becoming increasingly widespread. Lord Scott, in the recent House of Lords appeal on the legality of the detention without trial of foreign (non-UK) nationals suspected of links with terrorism, concluded that "indefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and made by a person whose identity cannot be disclosed is the stuff of nightmares". He compared the Anti-Terrorism Crime and Security Act 2001 to legislation during the Stalinist era.

Prior to his resignation, David Blunkett proposed the removal of jury trial for certain terrorist offences. So far, our own Director of Public Prosecutions, Ken Macdonald QC, is the only senior figure to have openly condemned any such move.

Alex Bailin, Matrix Chambers

Terror, emergency and
rights: politicised law?

There are many reasons why the massive 240-paragraph judgment, handed down on 16 December 2004, in A (FC) (and others) v Secretary of State for the Home Department makes for essential reading for anyone interested in law, politics and our constitution.

Even aside from the important ratio of the case (it is disproportionate and discriminatory to lock up foreign suspected terrorists without trial), one cannot ignore Lord Hoffmanns

widely reported description of the Governments own terror laws as "more of a threat to UK democracy than terrorism itself" (paragraph 97). There is also although not perhaps as widely reported in the media some adverse comment made by two law lords concerning the circumstances in which the UK went to war in Iraq, including the "fiasco" of weapons of mass destruction (Lord Hoffmann, paragraph 94) and the "faulty" intelligence assessments (Lord Scott, paragraph 154)).

Of particular interest to constitutional lawyers is the variation on the public law theme of the relationships between the court, the executive and Parliament. This case, it should be recalled, fell to be determined in a context where the executive could traditionally assume a very wide margin of discretion: national security.

But the House of Lords has reaffirmed that, even in such a context, where fundamental rights such as individual liberty are in play, or perhaps where very stark violations of such rights are threatened, that margin is to be significantly narrowed (see, for example, Lord Hope, paragraph 107).

Indeed, Lord Hoffmann plainly regarded even the hyper-political question of whether there is in fact an "emergency" facing the country as one which the court was perfectly entitled to, and should, answer on its merits (paragraphs 91-97). It should be noted that others of their Lordships (although preferring to base their decisions on different considerations) expressed concern about this point too: Lord Bingham (paragraphs 20-29), Lord Nicholls (paragraph 76), Lord Hope (paragraph 119), Lord Scott (paragraph 154) and Lord Rodger (paragraph 165).

Contrary to what some newspapers say, it is not, in truth, "the judges" who are becoming more "politicised". Nevertheless, politicised reasoning in judgments indicates that the actual content of our laws has subtly readjusted the constitutional balance. It is, after all, a natural consequence of the enactment of the Human Rights Act (HRA) that difficult and controversial questions of proportionality upon which many well-informed citizens might disagree now need to be decided by judges. Parliament would have known that when passing the HRA.

In any case, the fact that judges are "unelected", as Lord Bingham pointed out, does not make the exercise "undemocratic". There is an echo here of the historic legal controversy about disapplying statutes that were inconsistent with European Community (EC) law: R v Secretary of State for Transport, ex parte Factortame (No 2) (1991). There, too, the point had to be made by a senior judge that any lamented "loss of sovereignty" by the national elected Parliament had in truth been entirely voluntary on its own part (and therefore entirely "democratic"), since it had incorporated a transnational body of law which had for many years and repeatedly asserted its own supremacy over mere national law.

Political law is especially apparent in the human rights context when one considers the declaration of incompatibility available under Section 4 of the 1998 HRA. As Lord Scott trenchantly (and ambiguously?) pointed out (paragraph 145), the function of declaring government measures to be (1) not unlawful, but (2) merely incompatible with certain provisions of the European Convention on Human Rights (ECHR) and (effectively), therefore, (3) politically vulnerable to challenge, is "not a function that the courts have sought for themselves. It is a function that has been thrust on the courts by the 1998 act."

David Pievsky,
Blackstone Chambers

Terrorism and torture
a decision to look out for

Recently the Court of Appeal gave its judgment in A (FC) (and others) v Secretary of State for the Home Department (2004) regarding whether evidence obtained by states other than the UK using torture could be used in the UK in proceedings before the SIAC. The decision has been appealed, and will be considered by the House of Lords.

The SIAC, under the Anti-Terrorism Crime and Security Act 2001, hears appeals by persons indefinitely detained without trial, on the grounds that they are suspected terrorists. Rule 44(3) of the SIAC (Procedure) Rules 2003 provides that "the commission may receive evidence that would not be admissible in a court of law".

The appellants argued that evidence directly obtained by torture should not be admissible before the SIAC. The SIAC held that the method of obtaining the evidence went only to the weight which should be placed on it, and not to admissibility.

The appellants relied on a number of arguments. The court rejected a claim that the common law of England and Wales required that evidence obtained by torture should be inadmissible, in the same way that confessions obtained under duress are inadmissible in criminal cases, or that the use of such evidence was an abuse of the courts process.

The court gave longer consideration to the appellants claims relying on the Governments international obligations. The UK is a signatory to the United Nations Convention Against Torture (UNCAT). Article 15 of the UNCAT provides that the signatory must not permit statements obtained through torture to be used in any proceedings. Article 6 of the ECHR, incorporated by the Human Rights Act 1998, enshrines the right to a fair trial. The appellants said the ECHR must be interpreted in the context of other international obligations, and that this indicated that a fair trial could not be possible if evidence obtained by torture was relied on.

The Court of Appeal, by a majority, did not accept the appellants case. The majority stated that as the UNCAT had not been incorporated into UK law, it could not "trump" the clear provisions of the 2001 act and the 2003 rules. They held that to apply Article 15 of the UNCAT to the right to a fair trial under Article 6 of the ECHR was to "go too far". They also considered that, because the case was not criminal and the Home Secretary only had to have a reasonable suspicion and belief to detain the appellants, the requirements for evidence were appropriately less strict.

Lord Justice Neuberger, who dissented, pointed out that the appellants were not permitted to be shown all the evidence against them and that the outcome indefinite detention was arguably more severe than following a criminal trial. In the circumstances, a fair trial could not exist if reliance was placed on evidence obtained by torture.

Following the House of Lords declaration that indefinite detention without trial is unlawful, it will be interesting to see whether their Lordships take a similarly robust approach to the use of evidence obtained by torture.

Victoria Windle, Blackstone Chambers

Detention of foreign suspected international terrorists: discriminatory and irrational

In the House of Lords appeal in A (FC) (and others) v Secretary of State for the Home Department (2004), against the detention of foreign nationals under Section 23 of the Anti-Terrorism Crime and Security Act 2001, it was argued on behalf of the appellants that Section 23 was discriminatory as part of the challenge to the proportionality of the measures taken under Article 15 of the ECHR derogation from Article 5(1) of the ECHR (paragraph 45).

It was also submitted that, in providing for the detention of suspected international terrorists who were not UK nationals only, and not for those who were UK nationals, Section 23 unlawfully discriminated between the two groups on grounds of nationality in breach of Article 14 of the ECHR (paragraph 46).

Seven of the eight law lords who found that Section 23 was incompatible with the UKs international human rights obligations also found that the section was discriminatory. Only Lord Hoffmann declined to express a view on this issue on the basis that he did not want to give the impression that the section could be "cured" by extending it to UK citizens as well. In his view, the incompatibility stemmed primarily from the indefinite detention, rather than the category of those to whom it was extended (paragraph 97).

In a judgment that drew on a wide range of international legal materials and opinions, Lord Bingham rejected the Attorney-Generals argument that the correct comparison was between non-UK nationals who represented a threat to the security of the UK, but who could be removed to their own or third countries, and, quite simply, suspected international terrorists who were UK nationals (paragraphs 54). Both he and Lord Hope suggested that the comparator advanced by the Attorney-General might be reasonable in an immigration context, but that the present case was a matter of security and not immigration, thereby rejecting the Governments choice of immigration measures to deal with the Al-Qaeda threat to the UK (paragraphs 53, 134 and 138).

Lord Rodger emphasised that the Special Immigration Appeals Commission (SIAC) had also found that Section 23 unlawfully discriminated on grounds of nationality (paragraph 174) and that the Court of Appeal had misconstrued the SIACs decision when it overturned the SIACs overall conclusion. Far from deciding that the measures taken under Article 15(1) had been "strictly required", as Article 15(1) demanded, the SIAC had held that it was irrational to limit the detention power to foreign suspects.

Lord Walker, dissenting, held that the Government had not been irrational in using immigration control, and argued that those liable to be detained under Part 4 of the Anti-Terrorism Crime and Security Act were those who could not be deported because of an apprehension of torture after their return home and were therefore only a small subset of non-national terrorist suspects. In the context of all the anti-terror legislation, this was the only provision that used nationality to distinguish between subjects. In that context, he held that Section 23 was not discriminatory because there were sound reasons for it (paragraph 210).

However, perhaps the most trenchant summary of the illegality of the measure was provided by Lady Hale, who concluded her judgment (paragraph 238) by saying: "No one has the right to be an international terrorist. But substitute black, disabled, female, gay or any other similar adjective for foreign before suspected international terrorist and ask whether it would be justifiable to take power to lock up that group, but not the white, able-bodied, male or straight suspected international terrorists. The answer is clear."

Sarah Wilkinson, Blackstone Chambers

The impact of 11 September on insurance policies

Important legal issues have arisen for the insurance industry in the aftermath of the World Trade Centre (WTC) disaster on 11 September 2001, when the twin towers were struck by aircraft hijacked by terrorists.

The leaseholder of the WTC complex at the time of the tragedy was Silverstein Properties. Silverstein obtained insurance cover for the complex from around two dozen insurers for the total amount of $3.5bn (1.88bn) "per occurrence". The loss following the destruction of the WTC greatly exceeded $3.5bn.

From an insurance perspective, one significant question arising out of the disaster was whether the events of 11 September constituted one or two occurrences. The courts answer to this question would determine whether Silverstein could recover once (up to $3.5bn), or twice (up to $7bn (3.75bn)) under the insurance programme.

The issue was complicated by the fact that, at the time of the terrorist attacks, most of the insurance policy wordings had not yet been finalised.

Some insurers were bound by the WilProp wording, which defined "occurrence" as follows: "Occurrence shall mean all losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes. All such losses will be added together and the total amount of such losses will be treated as one occurrence irrespective of the total period of time or area over which such losses occur."

The insurers whose policies contained this wording obtained summary judgment, upheld in September 2003 by the US Court of Appeals for the Second Circuit. The court held that all losses flowing from the 11 September attacks arose from a series of similar causes and thus from a single occurrence, as defined in the WilProp form. As a result, Silverstein could make only one insurance claim against the insurers whose policies included the WilProp wording.

Other insurers, however, issued policies that did not specifically define occurrence. In December 2004, a New York Federal District Court jury concluded that, for those nine insurers, the destruction of each tower by a separate aircraft constituted a separate occurrence thus two occurrences in all. The effect of this decision is that Silverstein can recover up to $1.1bn (590m) more from insurers than if the jury had decided that the attacks constituted only a single occurrence.

Notwithstanding that the policies concerned in the Silverstein litigation were governed by New York law, much English legal authority was cited to the court regarding the definition of occurrence in insurance and reinsurance contracts. English courts have considered the definition of occurrence in a number of cases for example, whether the loss of 15 Kuwaiti aircraft seized by Iraqi forces during the 1990 invasion could be described as one occurrence.

A word of warning: as the New York jurys conclusion appears to conflict with English legal authority, insurers and insureds should be careful to check the aggregation provisions and governing law in their policy wordings.

Michael Mendelowitz and Susan McGill, Barlow Lyde & Gilberth