On her blog over at the Spectator website, Melanie Phillips, a writer with whom I generally agree on certain things, not least the right of Israel both to exist and defend itself, writes what I think is a poor article on David Davis’ recent decision to hold a by-election in his parliamentary seat to highlight the loss of civil liberties:
Much is being made in some quarters of the apparent gulf between the view taken of David Davis’s resignation by the political and media village (he’s lost the plot/is a one-man plot/is a monstrous narcissist) and the public (he’s a hero fighting for Britain’s ancient liberties). I can’t help but see all this as yet another example of the replacement of reason by emotion. I can certainly see that Davis has touched a popular chord among people who feel passionately – and I have much sympathy with this – that MPs no longer act in the public interest and no longer speak for them but instead are machine politicians whipped by their party leadership into a systematic denial of reality. I also sympathise with the general view that the state is encroaching more and more oppressively into people’s lives – the abuse by local councils of anti-terrorist legislation being a case in point. To that extent, the quixotic Davis is surfing the popular tide of anti-politics, which explains much of the support he is getting and is not to be under-estimated.
“Much is being made”. Yes, that is because the loss of civil liberties and the spread of the database state has reached the point where ordinary members of the public – those ghastly people – are getting riled. David Davis is a sufficiently paid-up member of the human race to have spotted this. But to dismiss his action as some sort of Dianaesque emotional display, rather than what is in fact a pretty shrewd, calculated act seems a bit patronising. And then we get to the reasoning that explains why Ms Phillips dislikes what Mr Davis has done:
Second, he says he is against 42 days because he stands for the hallowed principle of not locking people up without charge. So does that mean he is against the 28 day limit as well? And if he is, then surely he has to be against the 14 day limit that preceded it, and the seven day limit before that. Indeed, according to the principles he has laid down he has to be against any detention before charge at all. Similarly, he says he’s against the whole ‘surveillance society’ including speed cameras, DNA databases, CCTV and so forth; yet he also says he’s not against all of this, and doesn’t want to get rid of all DNA testing because some of it is perfectly sensible. So what exactly is he fighting for? And why couldn’t he do so within his own party, which largely takes precisely the view he professes? Has he given this any systematic thought at all? Despite his SAS image and multiply-broken nose, is he not merely beating his chest and emoting, in tune with the sentimental irrationality of the age?
Well, leaving aside the snide remark about his “SAS image”, I am not sure how Mr Davis would reply to all of those points but his recent remarks make it pretty crystal clear that he is against the holding of DNA on innocent people, for example, or even shorter periods of detention without trial. Ms Phillips, presumably, is in favour of all the above and more.
Then we get an argument that Mr Davis is in favour of all this “emotional” civil liberties stuff because he is insufficiently aware of the threat Britain faces from Islamic terrorism:
It also strikes me that there is a strong and quite vicious sub-text to the support he has been getting within certain political circles, which are backing him against what they call the ‘neo-cons’ in David Cameron’s circle — by whom they mean in particular Michael Gove and George Osborne. The thought-crime committed by these two is to analyse correctly the threat to this country posed by Islamism and to support America in its fight to defend the free world. The anti neo-cons believe, by contrast, not merely that Britain must put critical distance between itself and American interventionism, but that the threat to Britain from Islamism is hugely exaggerated, both from within as well as from without. It is in that context that they maintain that 42-days is unnecessary because the dire warnings about the likely threat to this country are unproven and that the extension of the detention limit is instead a Trojan horse for the willed erosion of our ancient liberties.
The reasoning is weak. It does not seem to cross her mind that one might be as concerned as the next man about terrorism – as I am – without feeling the need to chuck out long-standing protections of the individual that were not even removed – or at least only shortly – during emergencies such as the Second World War. It may be that some people on the right dislike the “neocon” argument out of some naive attitude about terrorism, or some sort of hatred of Israel/America, etc, but that does not appear to be the case with Mr Davis. As far as I can tell, he is very much from the Atlanticist tradition of conservatism.
Ms Phillips is also playing to the bad argument that to be a defender of liberty is to be a softie on security. We have to absolutely nail this terrible idea that you can trade off one against the other.
By contrast, here is a cracking article that takes Mr Davis very seriously indeed.
From your “cracking article”:
Labour ministers say it is ridiculous to depict modern Britain as a police state with Big Brother-style surveillance, and so it is.
I grew up in a police state, and trust me, Britain is very, very close to a police state. The bulk of the population is not served by the police; the police and the rest of the judiciary are changing from looking after the rights and property of the individual to looking after the rights and property of the state; while individual policemen may still want to get out there and catch crooks, their leaders have largely been co-opted into the state’s objectives and it is only a matter of time before “coppers” (as opposed to state apparatchiks) are in the absolute minority in the Police.
I’ve seen this before and I don’t like seeing it again.
You say that “Mr Davis … recent remarks make it pretty crystal clear that he is against … shorter periods of detention without trial.”
How does he explain then that he originally voted FOR the increase from 14 days to 28 days…
Gib, for all I know he has seen the error of his ways. I actually am more annoyed at his former positioning on the EU.
In any event, the consistency of the guy is not now the issue. What is good is that he has kept these issues in the public eye, at a time when the public are getting increasingly worried about this subject. For years, people like the contributors to this blog have feared that we were talking in an echo-chamber. It appears, however, that the meme of an emerging police/security state has spread quite far.
It helps make me feel that our scribbling is worthwhile.
Anyway, the point is that Ms Phillips clearly believe that the state can and should hold a person for much longer than 42 days. I would not be surprised to hear her argue for the internment of large swathes of the UK population.
I’d have sympathy with David Davis if he was resigning permanently as an MP to show his disgust at all the political horse-trading and the perversion of British justice & the Constitution. But to resign only to stand for re-election to the same House? Ridiculous. This is an empty gesture. It also has several major flaws:
1) He can claim the bye election is about 42 days or about eating frogs on a Sunday. But it’s simply not his place to decide what the election will be about. Only those who are secretly contemptuous of elections (e.g. the EU) claim the right to “interpret” meanings beyond their simple outcome (e.g. the Irish referendum was not a rejection of the Lisbon Treaty, it was really about a “lackluster” Yes campaign and unwarranted fears which had “nothing to with the Treaty”). Similarly, David Davis presumes to interpret his own (anticipated) re-election as a propaganda victory against 42 days, when in fact the only objective outcome is that David Davis stood for re-election and won.
2) Concomitant to 1), there are many out there who may feel the same as me. In this event David Davis may fail to get re-elected. To the extent he managed to persuade anyone that it’s about 42 days, he has scored an own goal.
3) Assuming his little scheme succeeds and he gets re-elected, he then slinks back into Parliament with a diminished ability to influence events. He is (was) a heavyweight politician able to make a difference from the front bench. The Conservative team comprising Cameron, Hague, Osborn and Davis was making huge gains on Labour. Getting elected to govern the country must be the pragmatic way to undo stupid legislation such 42 days. By potentially wrecking his own political career he has compromised the team.
4) He created a noisy distraction in a week David Cameron should have been focused 100 per cent on two pernicious threats facing the country: 42 days and the EU Constitution.
Phil, please. The idea that this by-election is a “noisy distraction” missed the point that by making so much noise, Davis keeps these issues in the publics eye. And frankly, given Cameron’s form on such issues, I am not very convinced that he can be trusted to hold the line on such matters anyway. I am sure that any half-competent polician can engage in parliamentary debate and help a colleague win a by-election. To suggest othewise is a bit like saying that Cameron cannot walk and chew gum at the same time.
As for this shit about “compromising the team”, I don’t think it is a bad thing for the Tories that Davis has done this in the long run.
What DD did is VERY useful at shaking out who really is on the side of the angels and who, when push comes to shove, cannot get past their attachment to the politics-as-usual shit. Melanie Philllips is no friend of liberty, that much is clear.
From Melanie Phillips’ article:
This is a quite interesting point; all right thinking people are against 42 days detention without charge, because it violates the civil liberties of the citizen. But I haven’t heard anything explaining why any shorter period – 3, 7, 14 or 28 days – doesn’t have the same consequence. I asked this in a previous comment thread, and the reponse was along the lines that a certain period was sensible, and it was just silly to think that holding someone for X days was equally a violation of their liberty.
Seems to me that as soon as you introduce a maximal period for pre-charge detention, it has to be arbitrary. If you’re happy to accept 3 days, why not 4? If 28, why not 29? If the only response is, ‘that’s how it’s always been,’ then you aren’t making the argument for civil liberties as a civil libertarian, you’re doing so as a conservative, which has all sorts of implications, not least, constant stasis.
Cameron and his ‘team’ are a big part of the problem.
Cameron does not give a flying fuck about civil liberties as he is a profoundly amoral weather-cock. I would argue that David Davies clearly thinks that too and that is entirely why he has done what he has done.
If what DD did gets traction, a self interested turd like Cameron might actually suddenly see value in pushing liberty as a way to benefit his own political career. Certainly DD has just made the civil liberties issue his in a way I suspect he will not regret politically either in the long run. After this he will never again be ‘just another politician’.
But without it being forced onto the agenda by DD and generating electoral interest, the ghastly Cameron would be more likely to grow tusks and wings than actual take a stand against ever more repressive statism *is there any other kind?).
This is the common cold = bubonic plague argument that endlessly pops up in so many libertarian arguments and why some ostensible libertarians cannot see the difference between North Korea and Switzerland.
Amounts matters, not just absolutes. There is a quantum of tolerable intrusions in a viable society. This is also why this blog is not ‘libertarian’ samizdata as too much libertarian thought is irrelevant to the actual pursuit of liberty in the real world.
Fine. But you didn’t answer my question, you just mocked it. If “there is a quantum of tolerable intrusions in a viable society,” could you explain why some particular pre-charge detention limit is intolerable?
Do you have an answer? If not, that’s fine, but I can’t see any principled basis for you to reject 42 days in that case.
I am sure that any half-competent polician can engage in parliamentary debate and help a colleague win a by-election.
Don’t be too sure, Gordon Brown is half competent and it’s way beyond him.
making so much noise keeps these issues in the publics eye
David Davis could have got a PR company to arrange for him to be locked up for 42 days, or commissioned research on the effect on an individual of each extra day of wrongful internment (future job prospects, tendency for depression/suicide etc.), or made a podcast on the erosion of long standing English liberties, or surveyed police chiefs from all over the world to get their views on 42 days to refute the claim of a handful of police and politicians in the UK etc.
But no, that all sounds like effort and imagination. Plus these things hardly likely to make David Davis look like a martyr are they. Much better just to resign membership of a House to which he was entrusted by voters and which – presumably – he still thinks is worth the deposit since he plans to stand for re-election.
Andrew, I suspect that the principle is not one that can be derived from some axiom. However, in judging the length of time a person should be held without charge, a rule of thumb should be the length of time a reasonably intelligent copper(s) need to obtain at least some credible evidence that they have grounds for holding the person.
Maybe he will do some or all of those things. But why not also have a by-election too? It is an old, established part of our parliamentary system that such things are possible.
Well, judging by that rather sanctimonious comment, why not abolish elections as they are such a waste of money?
Seriously, though, if a politician wants to resign his or her seat to call an election to test out an important principle, I don’t see why not. In any event, getting all hot under the collar about the cost of the election seems a bit precious given that the cost is peanuts compared to the amount of money the government spends on advertising its own policies to the public.
Frankly, I find the tone of a lot of the comments on Davis to be sanctimonious rubbish. Of course he wants to create a wave of coverage for himself. He is a politician, for goodness sake.
Cameron is a profoundly amoral weathercock. I would argue that David Davies clearly thinks that too and that is entirely why he has done what he has done
Yes and this impetuous futile gesture creates the suspicion that this wasn’t about 42 days at all but about his relationship with his party leader. No different to Gordon Brown horse-trading with the DUP then.
Cameron and his ‘team’ are a big part of the problem.
Really? So who do you hope will form a government in two years’ time?
David Davis could have got a PR company to arrange for him to be locked up for 42 days, or commissioned research on the effect on an individual of each extra day of wrongful internment (future job prospects, tendency for depression/suicide etc.), or made a podcast on the erosion of long standing English liberties, or surveyed police chiefs from all over the world to get their views on 42 days to refute the claim of a handful of police and politicians in the UK etc.
Getting yourself locked up for 42 days isn’t a stunt, then? Colour me confused. It would probably have cost him his job and his career, too.
All the other points you make have already been made elsewhere and I mean, for fuck’s sake, a podcast? That’s definitely going to change the world, isn’t it?
No, DD has done something dramatic and shocking, he has got everyone talking about why he did it in a way that has pointed out very clearly how far politicians have strayed from principle politics.
You can argue that he might have been able to change things as a possible Home Secretary, but he might possibly have not, given the “profoundly amoral weather cock” who is his boss.
Frankly, I find the tone of a lot of the comments on Davis to be sanctimonious rubbish
Who gives a monkey’s about the tone of people’s comments. For that matter, who cares if anyone agrees with me that Davis was driven in part by vanity.
The important question is whether he was right to do what he did. Nothing I’ve read here persuades me that it was a good idea a) politically: his own power to influence events when/if the Tories get elected has been compromised b) practically: the only realistic hope of removing this from the statute book is for the Tories to get elected and it’s difficult to see how his decision will have helped c) intellectually: is anyone persuaded by empty gestures? I do laugh at people who recycle bottles and nag me about being green but own loads of consumer durables, buy toys for their kids made in China etc. They honestly think that by recycling a few bits and bobs when they be bothered to is “setting an example”. Risible.
You come across as a pretty literate chap; surely the tone, or mood, of a piece can tell us a lot about what you think. By leaving a comment you are joining a debate. The tone that you bring with you is part of it. I don’t like your tone; I think you are sneering at someone who has made a pretty major decision and caused a lot of people outside the Westminster village to focus on certain issues.
Phil, You assume that DD and CMD would continue with the status quo and that CMD would definitely have made DD Home Secretary. I think it’s very likely that CMD would have reshuffled DD elsewhere where he might have had no impact on liberties.
Politically, I can’t see anyone denying that DD has made himself stand out from his (pussy) whipped peers. Practically, the issue has been thrust into the public eye by someone doing something that has shocked and confused everyone — this was clearly not being done by “business as usual” in the parliamentary process.
Intellectually, I don’t need convincing. Sadly, I rather do believe that many people will be convinced by empty gestures, just look at how long New Labour have ruled Britain on the basis of nothing more.
Andrew Roocroft is correct only with respect to the fact that any prescribed period of incarceration before charge is inherently arbitrary. There is room for differences in different cultures (here in the US it’s generally 24 hours, after which the prosecution has to show “probable cause”). But the fundamental point is that before the arrest was even made the government should have had a certain quantum of evidence in its possession, and it is not asking too much that such evidence be promptly presented to a neutral arbiter (a court) in support of the arrest and detention. (That also permits the establishment and posting of bail, another ancient anglo-saxon legal tradition.)
One day may be too short a period (although it should be possible for a prosecutor to get a modest extension if adequate grounds are presented), but in my opinion 28 days is far too long, and 42 days is unconscionable.
(Turing Code 876678. A palindrome. Nice!)
a podcast? That’s definitely going to change the world, isn’t it?
Oh dear. I rattled off from the top of my head some examples of the sorts of things you could do to publicize the cause against 42 days. You have latched on to this one because you don’t think it’s sexy enough…
Getting yourself locked up for 42 days isn’t a stunt, then? It would probably have cost him his job and his career, too.
… and this one because it’s a stunt (it’s not stunts I’m against, it’s impetuous empty gestures. And just to be clear, being locked up for 42 days is more than a gesture.). Sacrificing his job and career is precisely what he would have done if he was sincere about the systematic corruption of Parliamentary democracy. As I said in my first post in the discussion, I would have had sympathy with him if he resigned permanently from the House. This would have sent a clear message about what he thinks of the current political process. He’d have also been interviewed much more widely throughout the media IMO.
But resigning a safe Tory seat (although not losing the Tory Whip), with Labour at an all-time low in the opinion polls and with Nick Clegg suspiciously quick to announce no Lib Dem opposition, it’s hard to see that he’s really sacrificed anything when you consider Perry’s reasonable expectation that this could even be beneficial in the long run for David Davis personally. His action endangers the cause more than the man. Not good.
Phil,
I would beg to differ with your position – but taking you on your own terms on why he was wrong:
(i) “a) politically: his own power to influence events when/if the Tories get elected has been compromised” – If he was unsure of Cameron’s commitment and his relationship with Cameroon clique then he may well have judge now is the time to strike – waiting for an “if he becomes home secretary” is too risky if he believes he is to be removed. It would appear that the debate stirred up has certainly not been ignored – more rather than less influence I would suggest.
(ii) “b) practically: the only realistic hope of removing this from the statute book is for the Tories to get elected and it’s difficult to see how his decision will have helped” – See above, if not home secretary – assuming a Cameron govt. and Cameron’s likely backsliding then doing this bounces the Tories (and Dominic Grieve into removal of 42 days) and shores up the wavering social authoritarians who only voted against because they detest Labour.
(iii) “c) intellectually: is anyone persuaded by empty gestures?” – Hmm well if this is an empty gesture then I’d like to see more of them – if people feel strimgly about things let them resign and hold bye-elections it would make a greater change from machine politicians, who knows the idea of resigning on a matter of principle might even catch on in government – heaven forbid!
The criticisms of Davis seem to stem from trying to second guess why he resigned rather than believing what he said, now I understand that cynicism has become common currency but if the next step is thought divination thats a whole different ball game.
I don’t like your tone, you are sneering …missed the point …sanctimonious rubbish
This is ad hominem.
Phil Haven, grow some backbone. You wrote this, remember:
Seems pretty “ad hominem” to me. If you cannot take it, don’t dish it out. You dismissed the guy as a wanna-be martyr, I pointed out that such a dismissal was a form of sneering, and unworthy.
Anyway, whatever his motives are, I applaud what Mr Davis is doing. The fact that he is giving the Cameroons a lot of migraines is part of my pleasure.
42 days is arbitary of course, as is 7 minutes or a poincare time-cycle or anything. But… if you read DD’s speech I think he makes it clear that what he really objects to is the push for ever longer periods of detention without charge.
Essentially, he sees this as the thin end of a slippery slope. And I agree. 28 days is far from ideal but I suspect DD wants to draw a line in the sand and say no more. No, it ain’t perfect but it’s much better than 42 days with pressure soon enough for 56 days…
Another factor DD brought up in his speech was that he strongly suspected the Lords would turf this legislation out and then Brown would invoke the Parliament Act which would be an utter misuse of it especially as this was not a Labour manifesto issue.
In this context the criticism of DD for having supported 28 days but baulking at 42 doesn’t really make much sense. He is objecting to what he sees as a total, gradual dismantling of Habeus Corpus and to the government’s highly iffy tactics in pushing through such Draconian legislation.
In a purely political sense seeing as Brown managed to get 42 through the Commons, DD would get no traction if he was campaigning for anything less than the current 28 days. That would certainly leave him wide-open to the “soft on terrorism” schtick.
Don’t forget, martyrdom can be very effective.
In my opinion to justify detaining persons for 42 days without charge
you have to prove that it is nessessary to do so.
Now Terrorism of the Islamic kind is a whole new ballgame. It takes a lot more time an skill than the average bank job or murder domestique (as most of them are).
But the bottom line is-
Have we yet heard from a Chief Constable, bemoaning the fact that had he only had those “precious” 42 days then the person who has just perpertrated the latest atrocity would have been preventented from doing so?
No we havent.
So I can only conclude that the time allowed to detain suspects before charge is already adequate.
Gurning Gordon is playing politics, not reality again.
As are most of them.
Yes there is an egotistical element to DD’s action.
Have you ever met a politician?
I’ve met loads
Ego is an infallable constant.
But DD means it too.
He will keep uncomfortable issues relating to Civil Liberties (not just the 42 hour one) out there for several months.
Somethings i Dave and Gurning Gordon wished would go away, but they will now both have to deal with.
And by their “Dealing” shall we know them.
Sheesh!
Thats 42 days there folks
But I’m sure you knew that.
You dismissed the guy as a wanna-be martyr …Seems pretty “ad hominem” to me.
Yes I did and it was a mistake because now we’re talking about me rather than the argument. How ironic when we were discussing David Davis falling into precisely this pitfall (viz. making the discussion about him rather than 42 days).
“…. playing to the bad argument that to be a defender of liberty is to be a softie on security. We have to absolutely nail this terrible idea that you can trade off one against the other…”
Well you cant deny they clash in certain circunstances. After all 28 days ( i think this is the present number) days in UK is already a limitation.
The big problem with Terrorism and Legal due process system is that of security of informants and how to prove their reliability without putting them in danger or giving intelligence methods. Can we have an open trial against anyone when some Arab insider is giving us informations about some Terror attack that is about to happen? Of course in some circunstances we can just bring him/her and give asylum but at same time we loose futur data and the Terrorist group gets better internal security.
Imagine this:
1942 Trial of a German enemy combatant/terrorist.
It was explained that the discovery of German ENIGMA codes was made by ULTRA and that made possible for the judge to give life sentence.
Corolary: At expense of 1 life, Germans got information that they can save thousands of their soldiers. and at same time being able to kill thousand of British ones.
I dont have an easy answer to this. The only i can think of it is heavy penalties to those officers/prosecuters that will use any special terrorist law for any other proposes.
About 28 to 42 i dont know. It will be needed aa fair operational analysis to know if it warrants the extension.
Perry de Havilland – …when push comes to shove, cannot get past their attachment to the politics-as-usual shit. Melanie Philllips is no friend of liberty, that much is clear.
Spot on. Regular readers of Melanie Philips would have predicted her attitude to David Davis’s stance many moons ago.
She’s a one trick pony and like the others who share her stable the occasional baby going out with the bath water is totally justifiable so long as it suits their own narrow agenda.
By the by, has anyone come across a Christopher Hitchens’ response to the 42 dementia?
The 42 days detention without charge will of course end up like the terrorism laws,Miss Doris Poges 92 of Penge will be banged up for “eco crimes” for using the wrong bin on the wrong day.Sorry,but the disgusting,dirigiste government of this country cannot be trusted with any such powers,
Just a thought,is this a way of softening us up for Corpus Juris,that wonderfully enlightened system of our European colleagues,lock you up then trawl around for evidence.
If memory serves enemy aliens were interned almost from the beginning of the second world war to the end.
While I am aware of plenty of moderately large terrorist campaigns that were defeated by the use of internment eg Malaya, the Border Campaign, I am not aware of any that were defeated without it.
“Melanie Philllips is no friend of liberty, that much is clear.”
I think the problem is that Melanie is no friend of liberty for suspected Islamic terrorists, and that one of the main things that has perhaps set her off is that nobody has resigned over the rights of fox-hunters, smokers, drinkers, fat people, and ordinary people who just want to throw rubbish away, but the moment someone threatens the civil liberties of those poor l’il Muslim radicals, only then is the line drawn in the sand.
There is no difference in principle between 28 days and 42 days. (The law was originally proposed as “28 days plus” but obviously someone thought that was too open ended a phrase.) The most likely reason they want to increase it is that the operational security used by terrorists has been getting better, as they learn from their losses. So far, 28 days has been more than sufficient, but eventually it won’t be.
Of course, everybody knows that you can’t apply civil liberties selectively, that you have to grant them even to your worst enemies if they are to be worth anything. And even Osama is innocent until proven guilty. But the other problem with this protest is that nobody is offering any alternative. OK. So you don’t want to allow 42 days. So what are you going to do instead? Shrug your shoulders and suck up any damage if (when) it happens? Surrender to them? Or openly declare a new cold war on Islam?
Nobody want to take any of those steps, so 42 days is seen as the next best option to be seen to be doing something. ‘Bravo!’ to all those who have made a stand against it, but the criticism that they didn’t speak so loudly earlier on is still a sharp one. Of course 28 days and 14 days and all the rest mean the ‘liberty’ had been lost long ago, and to pretend there is anything special about 42 is a nonsense. (Or that there is anything special about detention without charge as opposed to any other liberty.) If you stand for civil liberties above all, then you should stand for dropping the limit to zero, and taking the consequences. (Or rather, letting the ordinary people of Britain take the consequences.) Damn the torpedoes, full steam ahead!
But if we win on 42 days, will they also make the same stand for the next proposed loss of liberty? Are we now standing up for all liberty generally, having said enough is enough? Or is it only for the liberties of certain politically fashionable groups supported by certain particularly ‘noisy’ lobbies? I am afraid I have little hope that this is the start of any good trend.
Jonathan
…given Cameron’s form on such issues…
Cameron’s own form on liberty and the surveillance state is pretty good, however much he may be publicly committed to the touchy-feely nursemaid state as political positioning for the party. The first time I ever heard of him was in May 2004. He was giving a speech against the ID scheme. Had you asked me in 2005 who was the more libertarian of the two, I should definitely have said Cameron.
For what it’s worth, that 24 hours doesn’t necessarily include weekends and legal holidays. If I arrest someone on Friday afternoon before Memorial Day weekend, he’ll sit in custody until Tuesday morning assuming that he does not post bond before then.[1]
I think the pre-charging detention was sold as “We know that he’s up to no good, but we don’t know who his co-conspirators are so we may not be able to charge conspiracy” among other things.
I can also see a limited period in order to gather the evidence and organize it for court. If the probable cause needs to be supported by witness statements or witnesses themselves from outside the jurisdiction, they won’t automatically be ready to present to the judge ten minutes after the arrest. Normally that’s not a problem: in complex matters without much urgency the courts want warrants issued before arrests are made. However, I imagine that a terrorism case could force police to move a little faster.
But I don’t see any possible way that 42 days is justified. Actually, I think that the prosecution should be working against a burden of proof for any pre-charge detention beyond “next court day after the arrest.” You don’t just lock people up over “I think they’re up to something” in a constitutional country.
[1] The way that works here: courts have established pre-set lists of bail bond amounts, varying with the classification of the offense: $1000 for class one misdemeanors like 3o Assault, $10,000 for Driving After Being Declared Habitual Traffic Offender (DUI related), no bond allowed for Violation of a Protection Order until the arrestee sees the judge, etc. If there’s a pre-set bond we need to basically wake a judge up if we want to hold someone without letting him post bail. If he can’t afford it and can’t (or won’t) pay a bondsman, he can ask the judge to reduce the bond amount when he appears in custody.
Other states are different: a few will have a judge or magistrate for an immediate appearance and setting of bond nights and holidays as well. I think Virginia is like that.
This is actually a Constitutional right as well, to have the opportunity to be bailed before trial for a bail amount that’s “reasonable” in view of the severity of the offense and any concern that the defendant will re-offend or flee. Eighth Amendment, I believe.
I’d argue for taking DD (mostly) at his word here, he wants to raise the debate. That debate is required because the majority (as reported) of the population think 42 days detention is acceptable. The greatest likelihood is because they haven’t actually considered it in terms of liberties, or snooping, or their neighbours or themselves, but only in terms of actual terrorists – ones that will be proved guilty in good time. Consequently they don’t care if it’s 42 days before they get charged or 500 because the police are infallible and get their man.
Of all the other options available to DD exactly none would actually have given him a chance to put a real debate in front of the public. No one pays any attention to debates in the commons, without public approval even if he had made Home Sec, he wouldn’t of been able to change the law it would have been categorised as being soft in a role where such accusations are intolerable.
It’s important that the debate is had in the context of liberty not terrorism and that is what he has created the space to do. Is he also playing with an eye to his reputation/status etc. Of course, he’s a politician, but I’ve yet to see any other option suggested that would have given him a chance to confront public apathy on these issues, rather than just debating in the westminster echo chamber. Don’t forget that it’s not the MPs minds/opinions that need to be addressed but the publics.
My sister phoned me yesterday and during the conversation she asked me about “That guy you were telling us about who writes about how they’re out-breeding us and will be taking over soon?”
“You mean Mark Steyn?”
“Yeah, that’s him.”
Turns out her book club had been talking about the 42 days controversy, (they were mostly in favour), and she wanted to do some research into why it might be a bad thing.
I forgot to point out that sharia didn’t have habeus corpus and the conversation drifted off into the EU and Gitmo, but it does illustrate how DD’s political stunt, (from a politician – surely not), or principled stand, (from a politician – well it has happened), has at least got people talking.
I find myself conflicted on this one as I agree that extraordinary measures might be needed to combat terrorism but at the same time I distrust our elite so much that I can’t help thinking that suspected TV licence evaders will end up banged up without charge.
Regarding the need for a “certain quantum of evidence in its possession”, that still applies. As I understand it, the act requires a report from various high-level names certifying that there are reasonable grounds for believing the detention is operationally necessary, has to state those grounds, has to seek independent (non-government) legal advice, has to inform the committees on Home Affairs, Human Rights, and Intelligence and Security, has to put the matter before Parliament (even to the point of calling an emergency sitting) who can overturn the order, and so on. And of course, they still have to have them up in front of a judge within two days of arrest to justify the continued detention anyway. As the bill stands at present, it’s not something they’re going to get away with doing every week.
It’s still extended detention without charge, but it’s not the licence for casual, evidence-free fishing expeditions people are claiming. Not yet, anyway. Exaggerating the effects risks losing credibility.
“I can also see a limited period in order to gather the evidence and organize it for court.” Much of it will have to be negotiated and brought from abroad. You’ll have to deal with courts in places like Pakistan and Saudi Arabia. You’ll have to deal with issues around intelligence services, foreign courts, diplomats and politicians. You’ll have to get warrants to access the records of foreign banks – probably chains of dozens of them to follow the money as it is moved around, some of them no doubt inclined to be uncooperative. You’ll have to get witnesses and experts in, some of them probably living/working in fairly inaccessible places (like behind enemy lines). You may have to get hundreds of megabytes/pages of documents decrypted, translated and assessed. You’ll have to negotiate with other police and security services about the impact it’ll have on their investigations, on risks to their sources. And you may be forced to move before you’re ready to stop the plot, or to stop the plotters escaping abroad or destroying evidence. Personally, I’m rather impressed that they can manage it at all in 28 days, to the point where I would be somewhat worried about the likelihood of miscarriages of justice due to them rushing it.
The people who actually do this job in MI6 have said that operationally it will be necessary. The argument shouldn’t be over whether there is any practical need for it to be 42, but over whether the security can be traded off against this liberty at all. If you agree it can, and the argument is simply over where to set the threshold, that’s one debate. One on which we do not have the relevant information with which to decide (it being secret). But if you say it can’t, then it’s totally irrelevant whether it’s actually needed to bring the case to trial – you are following Blackstone’s principle of letting ten guilty men go free to avoid detaining one innocent man. And if those ten men go and blow up fifty innocent men, well, that’s just the price of freedom. Have the courage to say so, loudly and clearly.
RAB says:
Maybe not. On this side of the lake, there were antennae twitching about the 9-11 hijackers, but nobody has seriously said anything about how the Feebs were all ready to detain them but didn’t have anything to work with, legally. Or maybe they did but didn’t act for whatever reason. I don’t know. I’ve learned not to expect too much from our Federal friends.
Anyway, I suppose that if they had enough to grab someone under a no-charge detention they probably would have had enough to just arrest him for conspiracy to commit murder. That is, unless the no-charge hold is either for a fishing expedition or is intended to be used in instances that have nothing to do with terrorism. I’ve long since come to the POV that I don’t want government to have any new search or arrest power that I wouldn’t entrust to Hillary Clinton.
My point, though, is just because the Chief Cons haven’t needed this yet doesn’t automatically mean that they won’t ever. I’ve never needed to shoot anyone at work, but you won’t see me unarmed on the clock.
I offer that only as a possible explanation. Any no-charge arrest makes me uncomfortable, and IMHO six weeks is ridiculous.
The length of time somone is held after arrest and before charge is not of much consequence to counterterrorism, or to other planned crime either, I’d suggest.
If someone is plotting individually or with others an actual bombing, rather than speculating about it on an internet forum somewhere, then merely arresting and searching them them is highly likely to stop the plot, is it not? It will also provide some warning, in all likelihood, to any co-conspiritors.
That’s why historically the model was that the Security Service might use covert methods to gather information and evidence, then hand over relevant details to Special Branch who would make arrests and bring charges almost immediately.
Patrick Crosier’s account of “low intensity warfare” is incomplete. In that model, the military sets out to disrupt the social base of the enemy as well as their recruiting. It requires arrests and indefinite internments on a very large scale, and generally in addition the open imprisonment of the target population – an effective suspension of all civil liberties for anyone, so that insurgents (who generally rely on clandestine compliance) are less intimidating to its base than the authorities are. Mass internment also requires an intelligence base.
The modern Terrorism Act 2000/Counter-Terrorism Bill model is entirely contrary (as well as self-contradictory).
It supposes police won’t arrest many people, and that they won’t have very good reason for doing so, but will hope to discover some in the ensuing period – and that holding suspects for a long time is some how productive. That last point implies not something got from computers – which it would be trivially easy, if it were needed, to get parliament’s approval to detain for extended periods – but something got from the person detained by virtue of lengthy questioning.
That has the ring of the Saudi justice system to me – you’ll be released or brought to trial when you have given a satisfactory confession.
Pa Annoyed,
To clarify, “that they won’t have very good reason for doing so” –
“Operational reasons,” in my view are not adequate grounds for holding and questioning someone. If there is evidence against them, then they should be charged or, at police discretion if the offence is trivial or excusable, released. If there is no reason for a charge then they should be released as soon as possible.
“Operationally necessary,” translated, means ‘in pursuit of some police or intelligence service purpose’. I can’t think of a worse reason for permitting people to be detained. It is a pretty good operational definition of a police state.
Of course, save where there’s good reason to deny bail – in the judgment of a court – it should not be charged OR released, but charged AND released.
How does that affect the admissibility of evidence at trial? Can the Security Service conduct searches that would be illegal for police, hand the results to police, and the police and CPS would then be able to use it in court?
I know the US answer, but nobody but me cares about that.
As for getting encrypted evidence off of computers: if the guy doesn’t want to give it up, forget it. Maybe GCHQ or No Such Agency has compromised PGP or its successors, but they haven’t told anyone. Telling the jury “Their refusal to comply with a court-approved search shall constitute evidence that they knew they had something to hide” is not a helpful investigative tool here.
I suppose torturing them until they make with the passwords could work…
The point is there are established channels in which the state can move, which we are used to, which we can plan aorund and into which they are pinned, leaving us both safe and free. Freedom is a manner of living, not an approximation to some axioms (or ‘principles’), which, as you rightly notice, don’t actually get us anywhere on the tough issues.
You are right, once we abandon conservatism, there is no qualitative difference between 42 and any other amount of days (there is obviously a quantitative difference). However, abandoning conservatism is really just another word for being a fool.
Pa Annoyed, you are confusing the demonstration of probable cause sufficient to justify someone’s arrest and detention with proving his guilt at a criminal trial. The two are far from the same thing. Of course it takes more than 28 days to marshall the evidence and witnesses for a trial; no one would argue otherwise. But the burden of proof sufficient to establish “probable cause” is quite low (it has been said that if the prosecutor merely shows up in court he could indict a ham sandwich, although in my opinion that is a bit of an exaggeration except in Texas). Furthermore, the prosecutor doesn’t have to present his entire case at the probable cause hearing, merely enough to convince the judge that there is merit to the charge. (Note also that this may be the first time the accused is even informed what the charge against him is.) It’s not asking too much that this be done quickly, and IMO even 28 days is far too long.
Also, I don’t care whether some official at MI6 has opined that “operationally it will be necessary”, any more than I believe the FBI when they say that it’s too burdensome to obtain a FISA Court warrant before installing a wiretap. That’s self-serving, abject nonsense (or, as I believe the Brits say, “bollocks”).
For the record, I do subscribe to Blackstone’s principle. I would rather live with the possibility of an occasional terrorist attack than in a police state where my rights and civil liberties are subject to suspension at the whim of some self-important government functionary. If that’s the price of liberty, so be it.
How does that affect the admissibility of evidence at trial? Can the Security Service conduct searches that would be illegal for police, hand the results to police, and the police and CPS would then be able to use it in court?
Historically it wasn’t a problem, because the intelligence services did not exist and so it was made certain that Special Branch didn’t make arrests till it was pretty sure there would be some admissible evidence for them to find. That might mean unwarranted pre-searches. More likely it would mean surveillance and humint. As I note above, if you only care about disrupting the enemy, not looking big and clever, an arrest or other intervention not leading to a charge is fine. For keeping up the flow of intelligence it is almost always going to be better.
Stuff encrypted on a computer has to get off somehow for the owner to use it, so unless you are in the idiot position of prosecuting people for mere possession of information (which we are, of course, but shouldn’t be), I suspect disk decryption is unlikely to be all that important in practice.
Guy writes, with my wholehearted support:
And just then another, pertinent ‘terrorist conviction’ bites the dust: ‘Lyrical Terrorist’ Samina Malik cleared on appeal.
Best regards
This is one of those issues that sorts libertarians, hawkish or no, from authoritarian neocons.
“you are confusing the demonstration of probable cause sufficient to justify someone’s arrest and detention with proving his guilt at a criminal trial.”
Actually I’m talking about four levels of evidence – for arrest, continued detention without charge, charge, and trial.
Arrest only requires reasonable suspicion – the UK equivalent of the American “probable cause” – which is a pretty low standard. Roughly half of those arrested get released without further action being taken.
Normally, a person has to be charged or released within 24 hours (PACE s41) but a senior police officer can authorise an extension to 36 hours if they can be convinced it’s necessary to achieve certain listed requirements (PACE s42). This requires that there be reason to believe that the evidence exists, even if they don’t hold it yet. Beyond that, a magistrate can issue a warrant for continued detention for up to another 36 hours without charge, again based on having reasons prevented why it is necessary to meet listed criteria (PACE s43). Unless charged under the Terrorism Act 2000 s41, there is no further recourse. Three days, and then they have to be charged or let go.
The person can be charged when the CPS believes there is sufficient evidence that there is a reasonable prospect of conviction (meaning better than 50:50), and it is in the public interest. In fact they compare against two levels of evidence, the full code test, and the threshold test. In the latter, the evidence for the full code test may not be available, but applies if the suspect can’t safely be released, they think there is a reasonable suspicion, and they think will be able to get the evidence.
And then they prepare the case for court, who apply a yet higher test, whether they are certain that the suspect is guilty.
When arrested under the Terrorism Act of 2000 (and no other terrorism act) the process is much the same except that the initial detention period allowed is 48 hours, or with a warrant from first a magistrate and then a high court judge, detention can be extended for up to 7 days at a time. Again, there are specific criteria to be met that the judge or magistrate has to be satisfied about.
But as I said previously, arguing about whether it is operationally necessary is irrelevant. If you think a trade-off between security and liberty is justifiable, then you simply don’t have the information on which to decide the threshold. “Arguments from personal incredulity” notwithstanding. If you think no such trade-off is justifiable (and you have just said so), then whether it is necessary or not doesn’t matter, because you’ll be letting them all go after 24 hours max. And you willingly accept the moral burden of whatever loss of security that brings.
It’s therefore best to clarify the issue and not even bring up the question of whether 28+ is operationally necessary; to try to claim there is no trade to be made. It runs the risk of this side-issue deflating your argument if someone comes along and shows that it is. Just say that you don’t believe in detaining even suspected Jihad terrorists, even if it means more of them get away with it, even if it means people die. Whether people agree with that or not, at least they will know exactly where you stand and why.
That, after all, was the point that we are told Melanie Phillips missed – that the considerable security risk resulting from opposing this in-itself insignificant extension to an already well-lost liberty is irrelevant. Security cannot be traded for liberty. Period.
Abu Qatada released.
Hooray?
P.A., you’re the one who raised the issue of “operational necessity”, not me, and apparently I misunderstood your point. It seems that we are largely in agreement here (although I would take issue with your characterization of a two-week extension as “insignificant”). I certainly second your final statement: “Security cannot be traded for liberty. Period.”
On the Abu Qatada case, since the appeals court has apparently prohibited his extradition, his release seems necessary. The problem is not with the release, it is with the appeals court. If he can’t get a “fair” trial in his home country, that is his problem, not yours. Clearly this is not a man who should be permitted to go on living in London, or anywhere else in the UK. He should have been extradited (or shot!) a long time ago.
I wasn’t the first to raise it, although I might have been the first here to call it by that name. It’s how the legal stuff describes it.
By “insignificant”, I mean that as a matter of principle 42 days is not different from 28, in terms of whether the liberty applies or not. To accept that there is a difference in acceptability is to accept that there is a trade-off to be made.
As for whether we are in agreement – I wasn’t making a statement of my own beliefs, I was trying to clarify the issue and positions under discussion.
On Abu Qatada, the appeals court is simply applying the rights and liberties as they stand. If you think there’s a problem with that, it’s not with the court. “Clearly this is not a man who should be permitted to go on living in London” is wrong. Like I said, you have to grant those same liberties even to your own worst enemy, even if they use it against you, or they are worth nothing.
You can’t have it both ways. This sort of thing happening is precisely the sort of consequence that leads people like Mel to call for the scrapping of liberties. You have to stand up for the likes of Abu Qatada getting away with it, staying here in this country under our protection, because until he’s convicted in a court of law he’s officially innocent, and holds all the same rights you do. You have to take the bad with the good, or you’re just being inconsistent or hypocritical.
And you haven’t even seen the best bit.
Ah, but I can have it both ways. Qatada is not a citizen of the UK; he’s a guest in the country, and is properly subject to expulsion at any time (and, I would posit, for any reason, although I suspect that Johnathan would disagree). This harkens back to the extended debate we had not too long on free immigration. If a country cannot exercise any control over who is permitted to remain within its borders then the concept of “country” is rendered meaningless.
As to Qatada’s conviction, you are correct that he has been convicted of nothing in England, which is why he should be released from British custody. However, he has been convicted, twice, in the courts and under the laws of his own country. If he has a problem with those convictions he should be appealing them in Jordan, not seeking the protection of England. Such protection should not be granted to someone whose principal goal seems to be the destruction of his host country.
You are also right that he has the same rights as I do. That’s because, like him, I am not a citizen of the UK. The rights of non-citizens are not (or should not be) the same as those of citizens. Those rights should not extend much beyond due process and deportation for anyone deemed “undesirable.” I would certainly classify Qatada as such; whether you would also so classify me I leave to you.
Pa Annoyed,
Thanks for a clear post, and for agreeing with me about the nonsense of trading security for liberty. (Government, and Brown in his latest speech in particular, often relies on the double fallacy – that there is a trade-off, and that necessarily any decrease in liberty constitutes an increase in security. Now they are starting to compound that into a triple fallacy, by defining security as a higher form of freedom, so that when you point to removal of personal liberty that is to be taken as evidence of more freedom.)
On quibble,
Arrest only requires reasonable suspicion, but under the Terrorism Act 2000 it doesn’t any longer require reasonable suspicion that the person arrested has committed any offence. This is not often noticed. s41 permits an officer to “arrest without a warrant a person whom he reasonably suspects to be a terrorist.” My emphasis. This is a much less stringent test.
Guy,
You’re welcome.
Quibble noted. I suppose it depends on whether you classify “being a terrorist” as a crime?