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  • Print publication year: 2011
  • Online publication date: August 2011

4 - Legislating for counter-terrorist detention

Summary

We have already seen how the executives in both the US and the UK committed themselves quickly to the detention of suspected terrorists with limited or no review. In both of these cases, the policies pursued by the executive were, in many respects, incompatible with clearly applicable and well-established principles of international human rights law. This was so even though international human rights law itself contains a model of accommodation that allows for extensive (perhaps even too much) flexibility by states, together with derogations. However, there was only so far that the executives could go without legislative support; in both countries the legislature would have to involve itself to some extent at some point. At that stage, one might think, overly repressive executive urges could be tempered, review of detention strengthened, and the ‘balance’ between rights and security struck. While there are scholars who maintain not only that legislatures are capable of carrying out this kind of dampening function in a time of crisis – and even that courts should leave difficult questions of this kind to the political sphere – the reality is that legislative reactions in the US and the UK have largely been facilitative. Rather than brake executive urges they have lubricated the wheels to allow for their realisation.