http://www.guardian.co.uk/comment/story/0,3604,1401324,00.html
Are we at war? The answer is beyond doubt: we are not Even a genuine terrorist threat does not justify Clarke's latest proposals Martin Kettle Saturday January 29, 2005 The Guardian <http://www.guardian.co.uk> There are serious people and serious organisations trying to destroy our society, Charles Clarke told a Daily Telegraph interviewer yesterday, before adding: "We are in a state of emergency." Fine, except that we aren't. And this is the basic political and legal flaw in the home secretary's extraordinary plan for control orders that place terrorist suspects - as well as their friends and relations, it now transpires - under executive sanctions ranging from tagging to house arrest. No one should doubt that the first part of Clarke's comment is true. There are indeed serious people and organisations out there, or even in here, who would kill as many of us as they could if they had the means and opportunity to do so. The threat they pose is likely to grow, not to diminish. And Clarke is at the apex of a national system that has to protect us as best it can from all that. But it is the second part of Clarke's remarks that should not be allowed to pass unchallenged. That a society such as ours faces a problem, a serious problem, and, to some extent, a new problem from Islamist terrorism is not in question either. But whether that justifies a state of emergency - with all that this concept implies in terms of our history, laws, institutions and values - is an immensely important and genuinely debatable question. An emergency obviously means different things to different people at different times. For a society, though, the difference between normal life and life in an emergency surely has to involve a very fundamental disruption of the known and the expected. Is that what we are living through in Britain in 2005? Hardly. For 999 people out of a thousand, and perhaps more, life goes on exactly as usual. We go to work. We live in our own homes. We have access to all our customary entertainments. We have no material shortages. We travel wherever we choose. We see little or no evidence of a lethal threat to ourselves or our way of life. Like other ministers before him, Clarke sees this all differently. "I've been frightened by the things I've been told since I became home secretary," he told the Telegraph. That doesn't make Clarke a liar. But it does mean that he is posing us with a new and slippery concept: a virtual emergency. The law has long drawn a distinction between normal times and emergencies. In normal times, the laws apply. In emergencies they may not. Traditionally the most common emergency is war. Amid the clash of arms, according to Cicero, the laws are silent. Or, as Lord Pearce put it less peremptorily, but less succinctly, in a House of Lords judgment in 1968: "The flame of individual right and justice must burn more palely when it is ringed by the more dramatic light of bombed buildings." Wartime rightly gives us our standard for emergency, not just in the view of lawyers, but in a political and cultural sense too. This country's history has given us an unusually intense shared experience of what a wartime emergency means. Even those of us, the majority, who were not alive during the second world war have inherited something of it. With the Wehrmacht encamped on the French coast and the Luftwaffe overhead, Britons accepted not just the formal legal restrictions under which the country had to be governed, but the whole ethos of national emergency it imposed, too. Our parents and grandparents were not in any doubt that they faced a national emergency. We have set the bar high. Are we at war today? It is the central question in the entire debate that Clarke says he wants to hold. By conventional standards, the answer is beyond doubt: we are not. Scholars like Philip Bobbitt may argue that we must recognise that we no longer inhabit the era of warfare between competing nation states and that we must learn to adjust to conflict with a "kind of virtual state", such as al-Qaida. But we continue to live in and identify with nation-states, with legal systems that have evolved in them too. We do not have virtual laws and it is hard to imagine how we could have. Over the last century, the legal concept of emergency has nevertheless evolved. Emergency is not confined to wartime. Ever since the Emergency Powers Act 1920, there has been provision for peacetime emergency too. In the mid-20th century, states of emergency were often declared to deal with major industrial disputes. International law has evolved in a similar direction. The European convention on human rights allows signatory states to derogate from some of its provisions "in time of war or other public emergency threatening the life of the nation". This was the provision that the British government invoked after September 11 2001, when it introduced the Anti-Terrorism Act, which the Belmarsh detainees challenged in the case that has triggered Clarke's proposals. The Belmarsh detainees made their case against their detention on several grounds, one of which was that there is in fact no public emergency threatening the life of the nation as defined in the convention. That argument was ultimately rejected by the Law Lords in December, although they upheld the appeal on other grounds. But the argument on the public emergency question was a damned close-run thing. Lord Hoffman, in particular, argued with searing eloquence, quoting Milton, that the acknowledged threat did not pose an existential threat to the nation. Even a threat to lives and property was not a threat to the nation, he said. The senior law lord, Lord Bingham, writing for the majority, disagreed. But he added that he did so "not without misgiving" that had been fortified by Lord Hoffman's judgment. Now Clarke is returning to the battlefield with a much more sweeping set of powers in view, still seeking to justify them on the basis of an emergency. In his head, no doubt, there are echoes of Machiavelli's view that "those republics which in time of danger cannot resort to dictatorship will generally be ruined when grave occasions arise". But he needs to have an echo of Lord Hoffman in his head too: "Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms." There is a more purely political point. If Clarke goes ahead with his proposals, and if he gets them through parliament, it seems inevitable that they will eventually be appealed to the Law Lords. On the basis of the Belmarsh judgment, the home secretary is clearly running a huge risk of having his control orders struck down. If that happens, it will not be because of some narrow legal point or some irritable judicial spasm. It will be because the war on terror is simply not a war in the sense that most people understand the term. An emergency may be tolerated and understood in traditional wartime circumstances. But it should not be stretched to cover even the genuine terrorist threat. [EMAIL PROTECTED] [Non-text portions of this message have been removed] -------------------------- Want to discuss this topic? Head on over to our discussion list, [EMAIL PROTECTED] -------------------------- Brooks Isoldi, editor [EMAIL PROTECTED] http://www.intellnet.org Post message: [email protected] Subscribe: [EMAIL PROTECTED] Unsubscribe: [EMAIL PROTECTED] *** FAIR USE NOTICE. This message contains copyrighted material whose use has not been specifically authorized by the copyright owner. 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