The Supreme Court and House of Lords in the War on Terror: Inter Arma Silent Leges?

Abstract

The period since the terrorist attacks of September 11, 2001 has witnessed the implementation of aggressive counterterrorism measures around much of the Western world. This is exemplified by the two jurisdictions with which this paper is concerned: the United States and the United Kingdom. Since 9/11, both states have, for example, detained terrorist suspects indefinitely without trial, and created a plethora of new counterterrorism laws. These measures raise questions about the appropriate boundaries of state power and have serious implications for individual liberty. As affected individuals have sought to challenge the legality of their treatment, the United States Supreme Court and the House of Lords, the highest courts in their respective jurisdictions, have been forced to grapple with these difficult issues. This paper is an attempt to situate the major decisions of the Supreme Court and the House of Lords concerning aspects of the war on terror in the historical context of judicial behaviour in times of war or crisis. The conventional account of judicial behaviour during such times posits that courts are ineffective guarantors of individual liberty because they inevitably defer to executive claims of national security. Only after the period of war has passed do the courts re-assert themselves, resulting in a cyclical pattern of contraction and expansion of liberty. How do the relevant post-9/11 decisions of the Supreme Court and House of Lords fit within this pattern, if at all? This paper considers five possible ways of understanding the relevant decisions in light of the conventional account of judicial behaviour described above. First, the conventional account may simply be incorrect or incomplete. Second, the decisions of the Supreme Court and House of Lords post-9/11 may represent a break in the historical pattern of judicial deference in times of war. The three further explanations are consistent with the conventional account. First, these cases may be sufficiently remote in time from the relevant events such that courts feel confident in reasserting their authority. Second, the courts may view the war on terror as being in some way qualitatively different from traditional war. The final explanation is that the post-9/11 decisions, while appearing to be different, continue to exhibit deference consistent with the conventional account.