I argue that the introduction—through law or policy—of counter-terrorist detention without adequate opportunities for review in the US and the UK can be understood as a product of panic, where panic is seen as having two dimensions: a ‘top-down’ manufactured panic (in the style of moral panic) and a ‘bottom-up’, genuine, fear-driven popular panic. The combination of these forces is that oppressive measures—such as detention without adequate review—present themselves as measures that can both aggrandise state power and capacity and satisfy a demand for “security”. They can also feed into a distorted discourse of ‘giving up some rights for liberty’, because in fact the rights that are most compromised are those of the ‘other’ rather than those of ‘the people’. Not only have the US and the UK both introduced extensive detention mechanisms (or, now, quasi-detention through control orders in the UK), but they have done so in a manner that really tries to minimise the effective capacity of courts or other neutral arbiters to determine the lawfulness of detention in any individual case and in contravention of the right to challenge the lawfulness of one's detention. In the book I argue that this should be understood as a deliberate attempt to force a downward calibration of international human rights standards around detention and review, especially as—as I also argue—the law as it stood on 11 September 2001 already allowed states a large degree of repression in times of emergency (too much flexibility and repression, one might even argue).
I engage in the book with some neo-realist theories of international relations and especially with the argument—well known in international law—that international law is a matter of power; it has no autonomy and is, instead, malleable at the insistence of the most powerful states. Bearing that in mind, and taking into account the rhetorical and legal representations made in various international fora by the US and the UK as regards their detention policies, I argue that we can see an attempt here by the two states combined to hegemonically undermine human rights standards and especially the right to challenge the lawfulness of one’s detention. What was particularly interesting for me as I researched this book and the PhD was that the right to be free from arbitrary detention does not seem to have been effectively undermined by these efforts. Certainly—and as I acknowledge in the book—there are places and times in which international human rights law itself has wavered since 9/11 including in the A v United Kingdom decision of the ECtHR—but by and large it has demonstrated more resilience than one might have expected. In the book I argue that this could result from the degrees to which international law is insulated from popular, or bottom-up, panic even as it can be subjected to the projection of panic by hegemonic states in a ‘top-down’ way.
However, simply showing resilience of an international norm does not necessarily mean much for the shape and content of domestic detention policies and laws. Nor is it of much effective assistance to those individuals detained as suspected terrorists and unable to access an effective review mechanism. And so I turn then in the book to the cases in the UK Supreme Court (formerly House of Lords) and US Supreme Court on counter-terrorist detention and in my study of these cases I detect a reduction in deference in the ‘War on Terror’ when compared to other situations of repressive emergency powers such as WWII internment in the US and detention in Northern Ireland. I argue that it is at least possible that the resilience I detect in the international human right to challenge the lawfulness of one’s detention may have emboldened domestic courts to be more resistant to executive claims of deference, necessity, authority and risk than might previously have been the case.
As I write in the conclusion:
Reliance on the judiciary is imperfect, as is reliance on international law, but where international human rights law has shown itself to be relatively insulated from projections of panic it seems to have maintained the integrity of its normative core, which in turn may have formed part of the institutional materials relied upon by domestic courts to limit repressive state action. Domestic law-making institutions do not, thus far, appear to have shown the self-restraint required to eschew unnecessary and disproportionate violations of the right to liberty, safeguarded by the right to challenge the lawfulness of one’s detention. As a result, it seems to me that reliance on a resilient and accommodationist international human rights law and a rights-enforcing judiciary may be the way in which human rights has, indeed, fought back against counter-terrorist detention in the ‘War on Terrorism’.