The Daily Demarche
Friday, March 11, 2005
Marc Schulman on Britain, Multilateralism, and Terrorism
(Frequent readers of these pages (if there are any such creatures) will know of the high esteem in which we hold Marc Schulman, proprietor of American Future, the "most underrated blog on the web" according to no less an authority than Yours Truly. We are therefore honored to have Marc guest posting during our pseudo-hiatus. His contribution is below.


During the 1930s, there was considerable concern as to whether the Western democracies could stand up to the challenges posed by totalitarianism. In particular, it was thought that democracies, because they intrinsically lacked the single-mindedness of totalitarian regimes, would be unable to mobilize their populations in time for the looming, inevitable confrontation. Fortunately, the doomsday prognostications were proven wrong. Unfortunately, tens of millions of lives were lost before they were proven wrong.

This look at the past provides a context for looking at a saga now unfolding in Britain. Back in December, I wrote about a UK Law Lords ruling that the government was acting illegally in detaining without trial foreign nationals (but not British citizens) suspected of terrorist involvement. The legal basis for the decision was that the Anti-terrorism Crime and Security Act of 2001 violated the European Human Rights Convention by discriminating against foreigners.

The legal basis for the Court's decision was straightforward. The extra-legal thoughts of some of its judges, two of whom I quote here, are of equal, if not greater, interest:
Lord Hutton was more concerned about detaining foreigners than about terrorism:

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.
Lord Scott argued that the legislation condoned practices equivalent to those of revolutionary France and Stalinist Russia:

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, associated with France before and during the revolution, with Soviet Russia in the Stalinist era, and now associated, as a result of section 23 of the 2001 Act, with the United Kingdom.

Faced with the Lords' decision, the Blair Government had a choice to make: it could relinquish the power to detain anyone without trial, or it could introduce new legislation that would enable the authorities to detain both foreign nationals and British citizens. By opting for the latter option, the Government sparked a national uproar spanning all political persuasions. This January 27 editorial from the conservative Telegraph typifies the reaction:

As a direct consequence of incorporating the European Convention on Human Rights into British law, citizens of this country could be liable to a form of house arrest, without trial. That is the bizarre irony that arises from the House of Lords ruling in December which judged the detention powers under the Anti-terrorism Crime and Security Act to be incompatible with the Convention. Those powers, applying only to foreign nationals, were deemed unlawfully discriminatory.

The logical conclusion to which the Government has been forced by its own actions, is that, if the threat from organised terrorism is sufficient to warrant such Draconian measures as the suspension of our traditional idea of habeas corpus, then it should apply to everyone who resides here, citizens included . .

This dilemma is of the Labour Government's own making. Had it not incorporated the European Convention, it would have been free to determine, as previous British governments have, what the liberty of its own population entailed. It would have been within its power to impose conditions on foreign nationals that did not pertain to citizens, if it had a democratic mandate to do so.

The convention has, at least on the Law Lords' interpretation, removed that possibility. At the same time as circumscribing the remit of democratically elected government, it has placed enormous (and, again, unprecedented) power in the hands of the judiciary, whose own political inclinations are unaccountable to the electorate.

Since the end of January, the Government has been attempting to win approval for the new legislation. Parliamentary approval is, at best, uncertain. If approval isn't forthcoming, the Government may be forced to release eleven terrorist suspects -- the most prominent of whom is Abu Qatada -- in circumstances under which it may be difficult to monitor their activities. The suspects in question include alleged associates of an Algerian man convicted in the United States for plotting to attack Los Angeles International Airport.

While I can't claim to understand why Qatada hasn't been brought to trial, it's clear that the evidence against him is compelling. According to Newsweek,

A special British immigration-appeals tribunal set up to review the cases of suspects detained under the antiterror law ruled last year that Abu Qatada "was heavily involved, indeed was at the center in the United Kingdom of terrorist activities associated with Al Qaeda." The three-judge panel, which relied in part on classified intelligence information, concluded that Abu Qatada "was a truly dangerous individual."
Also according to Newsweek,

Others who could soon be released include individuals described in British court papers as associates of Ahmed Ressam, the Algerian-born terror suspect who was arrested by U.S. Customs in December 1999 as he tried to enter the United States from Canada driving a car with a trunk filled with bombmaking material. Ressam later confessed to plotting a postmillennium attack on Los Angeles International Airport and became one of the U.S. government's most important pre-9/11 informants on the inner workings of Al Qaeda.
Who's To Blame?

If the suspected terrorists are released, the blame will fall, not on the UK Law Lords, whose ruling was mandated by the precedence of EU over British law, not on the Members of Parliament, who had to choose between suspending habeus corpus for everybody or nobody, but on the EU, for adopting a Human Rights Convention making it illegal to discriminate between foreign nationals and British citizens.

The Implications

This episode should serve as a case study of the consequences that can follow from the voluntary relinquishing of sovereignty. Had the UK Government not agreed to conform to the EU's Human Rights Convention, the 2001 Act would not have been overturned, the suspected terrorists would remain in detention, and the world would not now be faced with the possible prospect of an extra measure of violence of unknown magnitude and timing.

It's particularly noteworthy that the Convention applies to all foreign nationals, not just to EU foreign nationals. As such, the Convention enables the EU to claim that it's protecting the rights of everyone, everywhere. This assertion of universality has a familiar ring: it's the same as the International Criminal Court's (ICC) claim that even those individuals who are citizens of countries that aren't signatories can be brought to trial, and the UN's claim that it's the sole repository of international legitimacy.

All three of these multilateral institutions suffer from a democratic deficit. The EU is the least bad of the three: at least its member countries are all democracies. However, these countries are steadily relinquishing their sovereignty to a body that's not elected by their peoples, but whose laws trump their own. The British are now experiencing the consequences. Their safety, and the safety of others, may be jeopardized by the actions of the most democratic of the multilateral institutions.

Imagine, then, how much worse it would be if the ICC or the UN, whose memberships aren't restricted to democracies, were to achieve the status of the EU. To those who favor US membership in the ICC, I point out that there are conflicts between its provisions and those of our Constitution, and ask why we should sacrifice the integrity of our fundamental law and, thereby, our sovereignty, to an unproven institution whose judges don't necessarily share our concept of justice. And to those who advocate that we accept the UN's contention that it's the only source of legitimacy, I point out its repeated failure to enforce its own resolutions, and ask why we should place greater reliance on it to provide for our security.

Turning to Lords Hutton and Scott, I suspect that, even if Hutton didn't think that the detention law was a greater threat than terrorism and Scott didn't believe in the moral equivalence of today's Britain with yesterday's France and Soviet Union, the Law Lords would still have acted as they did. That's what adherence to the EU Convention required.

Nonetheless, I find their words profoundly disturbing. Here are two presumably learned men, one saying, in effect, that terrorism really isn't that much of a threat, and the other that measures taken to combat the threat place us in the same category as totalitarians. The first says that we don't need to be armed; the second that we shouldn't be armed.

This is where the parallel to the plight of the democracies in the 1930s comes into play. Back then, there were those who didn't take Hitler seriously enough, soon enough. Had the democracies rearmed sooner and faster, the war might have been prevented or, at least, shortened. And there were others, some pacifists and some not, who believed that, by rearming and encouraging a militaristic spirit, we more and more resembled those that we feared. They, too, paved the way for the disaster that overtook Europe in 1939.


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dé·marche 1) A course of action; a maneuver. 2) A diplomatic representation or protest 3) A statement or protest addressed by citizens to public authorities.

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