4. Thus, while eschewing Bush’s ‘war on terror’ label, the Obama administration’s National Security Strategy document commits the US to ‘fighting a war [sic] against a far-reaching network of hatred and violence’ and boldly asserts that ‘[w]e are at war [sic] with a specific network, al-Qaeda, and its terrorist affiliates’ (US White House, 2010, pp. 4, 20).
5. Flinders and Kelso’s more optimistic assessment of Parliament’s capacity for fire alarm influence (2011), which stresses particularly the gap between expectations and institutional capacity for influence, ignores the possibility that a government may lose a parliamentary battle at time t but succeed at time t+1, as the Labour government found when it sought to extend detention of terrorist suspects without charge to 28 days (Shephard, 2010). Parliament’s capacity for influence is also much more limited on defence and security issues than on other issues (ibid.).
6. Section 44 gives the police and the Home Secretary power to define any area in the UK for any period of time wherein they may stop and search any vehicle or person, and seize ‘articles of a kind which could be used in connection with terrorism’ without ‘reasonable suspicion’ that an offence has been committed.
7. The coalition includes 306 Conservative and 57 Liberal Democrat MPs, which provides the Cameron government with a majority of 38. However, its effective majority is 40, which is almost double the 21-seat majority enjoyed by the Conservative government elected in the 1992 general election.
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13
The ‘War on Terror’ in Court: A Comparative Analysis of Judicial Empowerment
Richard J. Maiman
Introduction
The global phenomenon of ‘judicial empowerment’ (Hirschl, 2004) has been the subject of increasing scholarly attention over the last decade (Woods and Hilbink, 2009). The UK is one of the many nations whose courts have recently undergone significant expansions of their legal powers. Although judges in the UK still lack the ultimate authority exercised by their counterparts in the US and elsewhere – to declare laws and executive acts unconstitutional – there is no mistaking their increasing prominence in debates on major issues of public policy. But prominence is not necessarily the same thing as power. In practice, judicial authority does not always live up to the expectations that accompany its creation. Some newly empowered judiciaries have exercised their authority quite aggressively, while others have used their tools only sparingly, if at all. Still others have met with such political resistance that their efforts have amounted to very little (Ginsburg and Moustafa, 2008).
This chapter examines how the augmentation of judicial power in Britain has played out in practice. This is done by comparing some recent rulings of the UK’s highest court with those of the US Supreme Court. Since a definitive picture is well beyond the scope of this article, my analysis is limited to a single subject area: cases involving challenges to the exercise of government authority in connection with the so-called ‘war on terror’. Specifically, I focus on eight of the leading cases decided by the US Supreme Court and the Appellate Committee of the House of Lords, respectively, in the aftermath of 9/11.1 Because these eight cases constituted only a small fraction of all the judgments handed down by the two courts in this time period, it is possible that similar analyses of decisions on other issues could lead to conclusions different from those reached here. But I would argue that these particular cases are especially useful for exploring the issue of judicial empowerment since they pose perhaps the severest test of judicial authority – whether, and to what extent, judges are willing to check the capacity of the political branches to protect national security in a time of crisis.
The four US Supreme Court cases discussed here – Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008)2 – all were brought by or on behalf of prisoners held at Guantánamo Bay, challenging aspects of their treatment by the US government; the Court’s decisions collectively addressed the questions of whether and how the detainees could challenge the legality of their detention, and in what forums and with what procedures such prisoners could be tried for violating the laws of war. The four House of Lords judgments all concerned the rules applicable to the government’s treatment of foreign nationals suspected but not convicted of terrorist activity, and in particular, the amount of coercion the government could use to control such persons’ activities and the kinds of evidence that could be used in court proceedings against them. These cases are A (FC) and others (FC) v. Secretary of State for the Home Department (2004); a second case by the same name decided in 2005; a set of four related cases from 2007 (counted here as a single case because they dealt with similar issues, though with somewhat different outcomes): Secretary of State for the Home Department v. JJ and Ors.; Secretary of State for the Home Department v. E and Anor; and Secretary of State for the Home Department v. MB/ Secretary of State for the Home Department v. AF ; and a 2009 case, Secretary of State for the Home Department v. AF and Anor.3 Despite the many specific factual and legal differences between the US and UK cases – variation of the kind that is unavoidable in cross-national studies – they are similar enough in their essential subject to allow for valid side-by-side comparisons.
Judicial empowerment in the US and the UK
The US Supreme Court is the prototype of an empowered judiciary. For more than two centuries, the Court’s authority to overrule executive and legislative actions has been an established – though often controversial – fact of American political life. That story has been exhaustively documented and debated and need not be revisited here. Suffice it to say that while scholars disagree sharply in their normative assessments of the Court’s overall record of judicial review – whether it has strengthened or undermined American democracy, and whether it has enhanced or diminished the institutional legitimacy of the Court itself – there is simply no question that among the judiciaries of the world, the US Supreme Court has had the longest and most extensive history of active involvement in public policy-making. Thus, it is an appropriate reference point to use in assessing the degree to which any particular national court can be described as empowered.4
The Legacy of the Crash Page 33
