In the face of terror, there is widespread fear and the feeling of being unprotected by the State. Governments’ performance is often measured by its ability to guarantee the security of its citizens and when a government can guarantee such security, citizens are usually willing to trade their rights and freedoms in return of such of a guarantee. The downside of such a trade is that there is no government which can completely ensure the security of its citizens and their property against terrorism. Yet in a bid to ensure security, governments often resort to [extreme] measures to combat the insecurity. Such extreme measures are justifiable to the masses that are already in fear of their safety and the measures include but are not limited to:
- Limitation of the right to privacy
- Disproportionate reaction to suspected terrorists
- Discrimination of citizens
- Imprisonment of suspected terrorists without trial
- Use of torture on the imprisoned/arrested terror suspects
There is a conflict of principles on how governments should react to terrorist attacks but the biggest challenge for a democratic government is whether to compromise the tenets of the rule of law in pursuit of a secure nation. For example, it is required that a balance should be struck between upholding the rule of law and protecting the nationals against terrorism; yet every democratic government is constrained to uphold the rule of law in fighting terrorists who have no regard for both domestic and international laws. Terrorists abduct and take young girls as wives and turn young boys into children soldiers; they slaughter people without any regard for humanity; they take hostages; they use human shields; they disrupt economic activities when they attack shopping malls among other acts.
The need to uphold the rule of law and the fight against such terrorists raises issues such as:
- Have we struck a balance between the need for government surveillance and the right to privacy?
- Should we isolate all persons who we reasonably suspect to be involved in terror activities?
- When suspected terrorists are arrested, should they be detained without trial and in contravention of the provisions of our criminal procedure laws?
- Should our security agencies torture terror suspects?
- Should terrorists be assassinated?
Each of the above raised issues raises further social and legal issues which must be satisfactorily answered before we can correctly say that the government has maintained the rule of law in the face of insecurity.
Regarding the issue of government surveillance and the right to privacy, the issues that arise are: to what extent should the government go in its bid to do surveillance that combats insecurity? Should such surveillance be done in secret or should the citizens know about such surveillance program? Who in the government does the surveillance or has access to such surveillance reports?
And on the issue of isolation of persons who are reasonably suspected to be involved in terror activities: Isn’t it a constitutional right not be discriminated on the basis of race, colour, and religion? Doesn’t the Constitution also guarantee the right to practice any trade, religion, profession among others? And isn’t it a tenet of the rule of law that all men are created equal?
If the authorities arrest a suspected terrorist, doesn’t such a suspect also have a right to be presumed innocent until proven guilty by a competent court of law? Do suspected terrorists have a right to Counsel? Do they have a right to be produced before a court within forty eight hours? And should they appear before a court of law, isn’t the prosecution burdened to prove their case beyond a reasonable doubt?
Following the arrest of a terror suspect, should torture be permitted? If yes, under what circumstances? And what is the test of ascertaining which suspect should be tortured and which one shouldn’t? Who applies the test? In any case, isn’t it a non-derogable right under the Constitution not to be tortured or subjected to any inhuman treatment? And is there ever a justification for the use of torture?
When a citizen is suspected of being involved in terrorist activities has evaded arrest over time, should such a suspect be assassinated? After all, such a person is a threat to the country as a whole. The issue however is is such an assassination lawful? Is it even moral? Isn’t it a form of extra judicial killing which is carried out without due process?
Despite the answers anyone might have in answer to the issues raised herein, it should be well noted that in the face of terror, the state must respond with the wisdom of the law and not act under the emotional wave of fear. Any measures taken must comply with the principles of the rule of law otherwise the state risks having its decisions nullified by the courts; thus rendering such a response a waste of state resources, a meaningless venture and a strength to any terrorists. We should have an unambiguous definition for terrorism and enactments for quick, effective and lawful measures against terrorism should be put in place.
STATE OF LAW AND STATE OF TERROR
On the evening of 10th July 2010, at Kyadondo Rugby Club and at the Ethiopian Village Restaurant and Bar in Kampala, twin bombings shook the country to the core in what was the worst terrorist attack the country has ever witnessed. At Kyadondo Rugby Club, revelers had gathered to watch the world cup finale and the bombs were detonated just in the final minutes of the game. 76 people were killed and many others were maimed. The attacks were plotted from Somalia with the purpose of hurting Uganda for sending troops forming part of the AMISOM. Subsequently, 12 men were arrested and charged with acts of terrorism.
On conclusion of the trial, Hussein Hassan Agade, Idris Magondu, Issa Ahmed Luyima, Habib Suleiman Njoroge and Mohammed Ali Mohammed were convicted and sentenced to life in prison. Hassan Luyima was sentenced to 50 years in prison and Muzafar Luyima was sentenced to community service for one year. The other 5 were acquitted for lack of sufficient evidence.
On the afternoon of 22nd May 2013, a British army soldier, Fusilier Lee Rigby of the Royal Regiment of Fusiliers was attacked and killed by Micheal Adebalajo and Micheal Adebowale near the Royal Artillery Barracks in Woolwich, South East London.
Rigby was off duty and was walking along Wellington Street when he was attacked. The two men ran him down with a car and then used knives and a cleaver to stab and hack him to death. The men dragged Rigby’s body into the road and remained at the scene until the Police arrived. They told passers-by that they had killed a soldier to avenge the killing of Muslims by British armed forces. Unarmed police arrived at the scene, nine minutes after an emergency call was received and set up a perimeter. Armed police officers arrived five minutes later.
The assailants, armed with a gun and a cleaver charged at the police who fired shots that wounded them both. They were apprehended and taken to separate hospitals. On the 19th of December 2013, both of the attackers were found guilty of Rigby’s murder. On the 26th of February 2014, they were sentenced to life imprisonment, with Adebalajo getting a whole life order and Adebowale ordered to serve at least 45 years. The arrest and prosecution of the terrorists was an excellent attempt at creating a state of law.
In the fight against terrorism, two states may be created: the state of terror or the state of law. Both states can be distinguished from each other thus: in a state of terror, there is wide spread fear that makes the masses feel unprotected by the state of law. The fear makes citizens ready to surrender their freedom in return for the promise of security which no government can completely guarantee. Such fear also facilitate the government’s use of divide et impera.
However, in a state of law, people are educated on the values of legality, tolerance and solidarity. In times of fear, the duty of the state of law is an ethical one, rather than a police one. In a state of law, in the face of fear, people need to be encouraged to leave their isolation and the state must facilitate their social and political inclusion.
When responding to fear, which is the first result of terrorism, the state should respond with the wisdom of a legislator which should not act under the pressure of (understandable) emotional feelings. Any measures taken should comply with the principles of proportionality and precaution; otherwise they risk being erased by the courts because they will prove to be meaningless. A state of law should take cultural action aiming at including heterogeneous people while respecting their diversities.
The usual categories of right over wrong, Christianity over Islam, should not be used. The state should develop a system cohabitation of opposites by sharing what we are constantly deny foreign people: social rights. A state of law which shows itself severe in the rules but is generous in the distribution of welfare will be able to compete with a state of terror.
SURVEILLANCE & PRIVACY
The 2014 disclosure by Edward Snowden of the US government’s wide net of surveillance stimulated an emotional debate about security, privacy and secrecy. We learnt that NASA engages in virtually unchecked monitoring of all sorts of communications that were thought to be private; but which we now know are maintained secret government databases. Three issues arise:
- Was it proper for the government to conduct such massive surveillance and to maintain such extensive files
- Was it proper for the government to keep its surveillance program secret from the public?
- If not, did this governmental impropriety justify the unlawful disclosure of so much classified information by Snowden?
Out rightly, there are no simple perfect answers to the above questions.
All governments must engage in some sort of surveillance. The nature and extent of permissible intrusion on privacy will always depend on the nature and extent of the threats posed and the value of the information sought in preventing these threats from materializing. A delicate balance must be struck between security and privacy. However, the issue is: who should get to strike that balance? Should it be the people with whom all power lies? Should it be intelligence operatives who are concerned with the security of the state?
The system of checks and balances
The power to determine what is to be surveilled, what to be released is the responsibility of a combination of executive legislative and judicial authority, monitored by a free and independent state. This of course is an imperfect solution, but like democracy itself, it is better that its alternatives.
DETENTIONS OF WAR
How can we keep terror suspects with no hope of trial advocate for due process? Detainees can be put under preventive arrest which can afford them some semblance of the due process accorded to ordinary criminal accused persons. Upon arraignment before court, court can order continued confinement based on the evidence of continuing dangerousness. The suspects should be accorded the right to counsel, they should be given notice of the charges against them and the requirement of proof beyond reasonable doubt should be guaranteed.
TARGETED KILLINGS AND THE RULE OF LAW
There have been accusations of governments in air strikes and other deadly attacks to kill suspected terrorists.
But, what should a democracy constrained by the rule of law do if a dangerous terrorist cannot be captured or can only be captured with undue risk to our soldiers? The scenario only leaves such a democracy with two options: One, allow the terrorist to continue with his terrorist actions and plans. Two, use extraordinary means and or technology such as guided missiles to target and kill him while trying to minimize collateral damage.
This has however generated a lot of controversy. Suffice to note, it is a form of extrajudicial execution, carried out without due process. The government is the judge and executioner; and there is no appeal. Targeted killings of terrorists are more akin to the killing of a dangerous felon who is fleeing from arrest or to killing in self-defense, both of which are extra judicial but entirely lawful.
Are targeted killings lawful and moral? That would be subject to the evidence that the targeted suspect is in fact a terrorist involved on ongoing operations. It would also depend on the imminence and likelihood that these terrorist operations will success, on the availability of less lethal alternatives and on the possibility that others will be killed or injured in the targeted attack.
TORTURE AS A TOOL IN FIGHT AGAINST TERRORISM
This is a choice of evils. Should democracies use torture to protect against terrorism? is there ever a justification for the use of torture?
From human nature, it should be stressed that no statement made under torture should ever be believed unless it is self-proving or corroborated by hard evidence. From an absolutist point of view, torture never works, because a tortured person will tell the torturer anything to stop the pain. A related argument acknowledges that torture may sometimes produce self-proving valuable real time information but that there are better methods for securing such information than by torture
Consider this: a captured terrorist brags that he knows the location of a ticking nuclear weapon in Nairobi and refuses to disclose it. What should law enforcement authorities do at such a moment to get the terrorist to disclose the location of the weapon?
The conflict can only be answered in a moral and factual context.
Should torture as a matter of morals be permitted in a case where as a factual matter, it may save lives? Proponents argue that saving lives has a higher value that avoiding infliction of pain. Jeremy Bentham constructed a trenchant “law school hypothetical case” in support of his view that based on a cost/benefit analysis, torture should sometimes be permitted.
Bentham imagined a gang of torturers who, if they remained at liberty would torture 100 innocent victims. He then asked whether it would be moral to torture one guilty member of that gang “to make known the place” where the other torturers could be found and apprehended and thus save 100 innocent victims from torture. His answer was yes, based on the greatest good for the greatest number.
Former US President Bill Clinton gave a similar answer, “every one of us can imagine the following scenario. We get lucky and get the number 3 guy in Al Qaeda, and we know there is a big bomb going off in America in three days and this guy knows where it is. Don’t we have the right and the responsibility to beat it out of him?”
However, would it be better or worse for a law to be passed requiring the president or the law enforcement body in charge of anti-terrorism to secure a warrant before or in a real emergency, during or right after employing such a drastic measure? Such a law would legitimize the use of torture on extreme situations and that is bad thing, but it would also create visibility and accountability, which is a good thing. We are faced with a terrible choice of evils.
Like Prof. Alan M Dershowite noted, such is the nature and complexity of principled decision making when confronting the evils of terrorism within the rule of law. There are no perfect answers, but some alternatives are worse than others. In such situations, democratic accountability requires that we should generally opt for the least-worst approach which is most compatible with both the rule of law and the realities of terrorism.
BY SAMALI BITALA
This article appears in our digital law newsletter, The Deuteronomy Vol 6, Issue 3 of June 16th, 2017
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