British court rules against policy on terror detentions

LONDON -- In a rebuke to Tony Blair's government, Britain's highest court yesterday ruled that the country's policy allowing indefinite detention of foreign terrorism suspects violates European human rights laws and is discriminatory.

Judges from the House of Lords ruled 8 to 1 in favor of nine Muslim men, some held as long as three years under the antiterrorism law Britain passed after the Sept. 11 attacks. While the ruling does not overturn the controversial legislation, it places responsibility on the government to amend the law, which is up for renewal in the coming year.

The judges sternly criticized the legislation as Draconian, called it a threat to British civil liberties, and said it discriminates against immigrants.

"The real threat to the life of the nation . . . comes not from terrorism but from laws such as these," Lord Leonard Hoffmann wrote in the ruling for the majority. "That is the true measure of what terrorism may achieve."

The suspects will remain imprisoned for now. Britain's home secretary, Charles Clarke, who is responsible for antiterrorism and security measures, said Parliament would review the legislation.

"It is ultimately for Parliament to decide whether and how we should amend the law," said Clarke, facing the challenge on his first day on the job after his predecessor, David Blunkett, quit a day earlier over a visa scandal.

The ruling highlighted the struggle that Britain and many other Western countries face over striking a balance between counterterrorism efforts and individual rights. It recalled landmark decisions by the US Supreme Court in June that checked the government's power to imprison suspected terrorists.

Steven Watt of the American Civil Liberties Union said that the British ruling should be seen as part of an emerging judicial reaction against expanding government reach. There is a greater willingness to find that the "rule of law" trumps executive claims of national security, he said.

"The courts are carrying out a much more searching inquiry into executive claims of national security around the globe now -- certainly in two of the leading democracies, the US and the UK," Watt said. "This is reflective of historical trend."

The specific legal issues in the United States and Britain are different, however.

In one American case, involving foreign detainees held at Guantanamo Bay, Cuba, the issue was procedural. The Bush administration argued that civilian courts had no jurisdiction to hear a lawsuit by the prisoners because the base is technically on Cuban soil, but the Supreme Court ruled otherwise. It did not address the merits of their claims to freedom, which are now being litigated in lower courts.

In the other US case, involving an American citizen being indefinitely held as an "enemy combatant," the central issue was one of rights. The Supreme Court ruled that US-born but Saudi-raised Yaser Hamdi had to be given a greater chance to rebut the evidence against him, with help from a lawyer, before a neutral "decision-maker" before the government could jail him without charges.

After the decision, Hamdi was released after he signed an agreement renouncing terrorism and his US citizenship. By releasing him the US government avoided having to show Hamdi or his attorneys the evidence against him.

The British case centered on discrimination, because the anti-terrorism detention law only applied to foreigners, even though British citizens could also be terrorists and pose the same threat. The judges also said threats to the nation do not justify suspending the European Convention on Human Rights' guarantee of liberty.

One possible next step, therefore, would be for Parliament to modify the law so that the government could indefinitely detain any suspected terrorist, regardless of nationality.

The British government has argued that the legislation is necessary to ensure security, and that indefinite detention is necessary in instances where there is insufficient evidence to bring a suspect to trial and the suspect refuses deportation to their country for fear of persecution. But human rights activists have assailed the detentions and termed London's Belmarsh prison, where most of the suspects are being held, Britain's Guantanamo Bay.

Seventeen foreign nationals have been detained under the legislation, including Syrian cleric Abu Qatada, whom the British government charges was the spiritual inspiration for Sept. 11 hijackers.

The detainees are denied access to the charges and evidence against them. The British government assigns them lawyers, but they do not have access to all the evidence against their clients.

"Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law," Lord Donald Nicholls said in the ruling. "It deprives the detained person of the protection a criminal trial is intended to afford."

European countries have responded in a variety of ways to terrorism. Earlier this year, Germany passed legislation making it easier for authorities to deport or imprison terrorism suspects.

Civil rights campaigners have criticized antiterrorism measures in France, home to Europe's largest Muslim population. French investigating magistrates wield enormous investigatory and interrogatory powers, and terrorism suspects can be detained for up to three years without trial.

British civil rights campaigners welcomed yesterday's decision and urged the government to draft new legislation protecting the civil liberties of terrorism suspects.

"Future generations will be proud that today, Britain's highest court chose democratic values over the politics of fear," said Shami Chakrabarti, director of the human rights group Liberty.

Massoud Shadjareh, chairman of the Islamic Human Rights Commission, said that "this ruling is the final nail in the coffin of this Draconian piece of legislation, under which the lives of 17 innocent people and their families have been mercilessly destroyed."

Liebowitz reported from London; Savage from Washington, D.C.