Following the attacks of September 11th, numerous countries set out to battle terrorism mercilessly. The war on terrorism has posed a great judicial challenge for democracies: how can terrorism be fought efficiently, while maintaining peoples’ basic human rights, which are fundamental to any democracy? In order to understand this dilemma, one could examine the judicial systems in the US and UK, and analyze the legal instruments that have developed there, since the beginning of the decade.
In the year 2000, the Terrorism Act was passed in the British parliament, thus updating legal methods in dealing with terrorism. One of the great innovations of the act, was defining “terrorism” as an act (or threat of an act) which is committed or planned in order to affect a political, ideological or religious policy, and includes the use of violence or harm to property, disruption of infrastructure, or essential services and systems. As part of the Terrorism Act, the UK defined specific actions as terrorism and set harsh sentences for them. In addition, the Terrorism Act granted authorities particular search and arrest warrants, the right to apprehend suspects and detain them for up to 48 hours before pressing charges, and the ability to prolong their arrest for up to seven additional days.
After the September 11th attacks, the British parliament passed another law, which substantially increased the security forces' authority in several terrorism-related areas. As part of this law, the British Home Secretary was granted the authority to order the administrative arrest of foreign subjects suspected of terrorism, who could not be deported to their countries of origin. This type of arrest differs from the criminal arrest of terror-suspects that was applied in the terrorism act of 2000. However, in 2004 the court annulled the articles relating to administrative arrests, on the grounds that it discriminates against non-UK citizens. The court also stated that the authorities were unable to prove the necessity of administrative arrests and that alternative measures could be used.
Following the court ruling, the UK passed another more lenient law in 2005, which substituted the use of administrative arrest with restraining- and supervising-orders, and which does not distinguish between suspects who are citizens of the UK and those who are not. Despite this law, the criminal arrest of terrorism suspects instated in the previous Terrorism Act of 2000 was never annulled. Moreover, the arrest periods were increased to 14 days in 2003 and 28 days in 2006. More recently, a new bill has set out to prolong the arrest period to 42 days.
In the US, the Patriot Act was passed by congress some six weeks after the attacks of September 11th. This law was a comprehensive reform in dozens of legal fields, and authorized United States security agencies to use invasive measures in their war on terrorism, measures that were previously off limits, due to human rights issues.
The U.S government also acted towards legislation that would enable the arrest and trial of al-Qaeda and Taliban insurgents taken prisoner in Afghanistan. In November 2001, U.S president Bush promulgated an executive order demanding the apprehension of al-Qaeda members and their accomplices. Special military tribunals were set up solely for these trials. Hundreds of insurgents arrested from this order were imprisoned at Guantánamo Bay in Cuba for indefinite periods of time, without the option of obtaining legal counsel. Similar to Israeli law, these prisoners were defined as "unlawful enemy combatants" – a state of limbo that denies them the rights of criminal suspects or those with POWs status and allows the U.S government to keep the accused in custody for an unlimited amount of time without trial.
In 2004, the American government set up additional military tribunals with the sole purpose of examining the classification of the Guantánamo detainees as "unlawful enemy combatants", in order to prevent them from appealing to federal courts within the US. As part of these legal procedures, some detainees were denied legal counsel and access to some of the evidence in their case. For these detainees, torture was a legitimate instrument for collecting evidence, and they were denied the right of cross-examination. In 2005, the US Supreme Court ruled that procedures in these tribunals were not in line with US and international law. As a result, the government set up further military tribunals in 2006. In an unprecedented ruling in June 2008, the US Supreme Court stated that despite these new military courts, the detainees had the right to appeal to federal courts.
In the United States and the United Kingdom, terrorism-related legislation grants security agencies extensive authority in battling terrorism. These laws remain controversial and antagonists cite the risk to democracy as a much greater danger than the risk of terrorism. This claim can be heard in Israel and should not be taken lightly. Such a claim should be examined carefully in order to ensure that legislation in the US, the UK and Israel, as well as in other democracies, does not sacrifice human rights and freedom on the altar of national security.