Counter-Terrorism Legislation in the Western World and Airport Security and All that is In-Between…

Counter-Terrorism Legislation in the Western World and Airport Security and All that is In-Between…

Not too long ago an extended panel of Supreme Court judges in the United States, ruled by a majority of five to four that the law enforcement agencies in the United States can make invasive physical searches, including a strip search, of any person taken to jail or into custody, even if he was arrested due to a minor offense such as driving at excessive speed or failing to pay alimony – with no need to prove that there is any suspicion that the arrested person is carrying anything prohibited. There is a bill before the British parliament under which the country’s security agencies will be given the power to eavesdrop on the emails and SMS’s of its citizens. Many democratic countries are now displaying increasing readiness to employ strong measures against increasing international terrorism. This policy confronts democratic countries with a difficult challenge – how on the one hand is it possible to fight terrorism effectively and uncompromisingly, and on the other hand not to infringe human rights and basic freedoms which are the lifeblood of every democracy. This challenge presents itself most clearly in the legal arena when the executive branch in a democratic country seeks to enact laws that give the security forces in the country powers to take harsh and invasive measures in their fight against terrorism.

I have chosen to concentrate on a review of the main counter-terrorism legislation in Britain and the United States since the events of 9/11. The decision to concentrate on those countries in particular is because they are currently in the forefront of the international war on terrorism and also have a long democratic tradition.

Britain

In December 2004, the judges ruled by a majority to rescind the provisions of the Law dealing with the arrest of those suspected of being involved in terrorism because they discriminated between foreign and British citizens, since they allow for the administrative detention of foreign citizens only but not the administrative detention of British citizens even if they pose an equal threat to Britain’s security. The judges also determined by a majority that the British authorities had not succeeded in proving that there was no room under certain circumstances for taking less stringent measures against detainees than administrative detention, such as electronic tagging, restriction and supervision orders.

Following the ruling, the British parliament rescinded the provisions of the ATCSA dealing with those suspected of involvement in terrorism and passed by virtue of it a new law called the Prevention of Terrorism Act 2005. This law, which is still in force, allows restriction and supervision orders to be issued against those suspected of involvement in terrorism, such as orders for house arrest and orders restricting movement in place of administrative detention, without distinguishing between British citizens and foreign citizens.

United States

In this context it should be mentioned that the arrest of Taliban fighters and al-Qaeda terrorists in Afghanistan and their detention in Guantanamo created a wave of legislation on the one hand and public and legal outcry on the other that led to the Supreme Court being much involved in the legality of the judicial process. The Supreme Court made rulings that led to changes in the legislation but did not actually make things easier for the accused.

Airport security

The treatment of passengers at airports by security personnel is one of the most complex and delicate issues on the agenda of supervisory bodies worldwide. There is a dissonance between the increasing threat and the need to safeguard the rights of the citizen – and this contrary to tougher legislation as described above. In an effort to deal with this dissonance, many countries have incorporated security technology in response to the need to avoid as far as possible invading a passenger’s privacy and/or making a decision to check him for irrelevant reasons. However all the evidence until now is that bombs don’t get to the airport on their own. Somebody brings them with the intention of using them. The modern terrorist knows how to disguise his bomb (take the example of the terrorist who concealed an explosive device in his shoe on his flight from Paris to the USA and the terrorist who concealed an explosive device in his groin on his flight from Holland to the USA.

Conclusions

2.     Stiffening of legislation provides the security authorities with many items of information about its citizens. A mechanism should be put in place that will make it possible for the information to be passed on to the security teams at the airport with the aim of concentrating on suspicious passengers.

3.     It has been shown that strategically significant terrorist attacks lead to a tightening of legislation and consequently to impinging on the rights of the citizen. If some of the tools available to the law are transferred to security staff at the airport there is a reasonably high probability that attacks can be prevented at the stage of the meeting between the security officer and the suspicious passenger.

4.     The invasion of the passenger’s privacy is of infinitesimally less consequence than the potential injury to citizens in general as a result of tightening legislation.

Summary

History has shown that another attack on aviation involving a large number of casualties will create a new wave of tough legislation that in the end will cause greater damage to the freedom of the individual and the basic freedoms of citizens. Now is the time for legislators, law enforcement and security officers to sit down together and establish norms, guidelines and tools to make it possible to deal more professionally with modern terrorism in general and the threat to planes and passengers n particular.