How do we Safeguard Human Rights?

‘Safeguarding Human Rights lies less in new laws, than in new interpretations’. Discuss with reference to the United States and the United Kingdom Introduction Both sides of the proposition posed in the title question are fraught with difficulty. Human history, particularly as it unfolded in the twentieth century, confirmed that national and supranational treaties and legislation, no matter how compellingly drafted or extensively ratified, was a thin safeguard against human rights abuses. Versailles, the Yalta Conference, the United Nations Declaration of Human Rights and the International Convention against Torture represent a sampling of this truth.

The mere enactment of a human rights provision does not carry an implicit assurance of compliance or respect for its terms. Similarly, the legal traditions advanced by case law and other jurisprudence are an inadequate moral compass era to era in the human experience. Human rights are a dynamic and highly contextual aspect of our global existence. Written laws can quickly assume the status of tombstone data, immutable, inert and ineffective in the face of rapidly changing societal attitudes and diversity. The precise definition of what constitutes a fundamental right of any kind is never static. The body of law in any society is susceptible to manipulation by subsequent generations. In the course of this paper, an argument shall be advanced that seeks to synthesise both aspects of the title, with a primary weight given top the promulgation of better and more powerfully written laws as the ultimate tool to encourage cogent and authoritative interpretations to best counter the dynamics of human rights issues. The analysis commences with a series of working definitions.

Depending upon the tenor of a particular time, human rights protections may be expressed in terms as expansive as an ocean, or as thin as a puddle. An effective definition of human rights is crucial given its status as the touchstone modern societal concept in both the United States and the UK. The relevant definitions are especially examined from the perspective of two constructs – rights versus obligations, and claims versus rights versus entitlement. The definitional foundation analyses specific examples available in both the American and the UK human rights experience. The common roots of the constitutional protection of human rights in each country and the divergence in approaches between both nations are considered; the American Constitution and the UK incorporation by reference of European Community human rights standards are considered in this respect. It is contended that the United States and the UK have recently returned to a common root in the consideration of the limits to be placed upon human rights availability in times of national emergency, a contention examined with particular reference to the events and the repercussions of the 9/11 and 7/7 terrorist attacks. An examination of modern constitutional protection in both the UK and the United States leads inexorably to a restatement of the central question –is the best human rights protection an enlargement of the existing positive law or the promotion of existing human rights jurisprudence? In this specific context, the question may be further re-stated in terms of an ‘acid test’ –how has the protection of human rights withstood the exigencies of the current ‘war on terror’? This conflict and all of its attendant human rights pressures will be considered as both a latter day moral panic and as the ultimate human rights intersection between individual liberties and societal protection.

The paper concludes with an observation advanced in support of the proposed synthesis. Human Rights – a societal touchstone As noted in the Introduction, human rights are increasingly identified in the public consciousness as representing the essence of both modern UK and American society. ‘Rights’ in all of their forms are asserted, advanced and in theory, protected with a vigour that is evident in every aspect of society. It is a simple but worthy observation that both American and UK societies now stress human rights laws because a functioning society must have them. Humans through history have proven themselves incapable of effective rule without laws. Alan Dershowitz has noted that ‘…man strives for something to worship…today that ‘something’ is human rights…’

[1] The natural law theories of Enlightment thinkers such as John Locke have remained a constant in modern day human rights considerations, where any type of intolerance is generally regarded as a limitation upon natural and desirable human growth and the acquisition of knowledge.

[2] Michael Ignatieff has characterised human rights as a language that connects the disparate nature of global humanity. Progress on human rights issues is defined in this context as ‘…an increase in our ability to see more and more differences among people as morally irrelevant’[3]; the spread of human rights must be encouraged as it represents definitive proof of moral progress. The concept of human rights is one of the few philosophical or legal constructions that may be defined by what they are not without doing violence to logic or scholarship. In one sense, a theory of human rights is a theory of human wrongs; ‘…it begins with the worst of the injustices: the Crusades, the Inquisition, slavery, the Stalinist starvation and purges, the Holocaust, the Cambodia slaughter, and other abuses that reasonable people now recognise as wrongs.’

[4] In a similar legislative context, Thomas Hobbes described covenants without swords as ‘only words’;

[5] rights could only exist through a combination of statements of intention and a commitment to action and their enforcement. Similarly, a right is expressed in contradistinction to an obligation.

Both the American Constitution and the UK law (both before and after the Human Rights Act / ECHR interpretations) emphasise rights, and their inherent sense of entitlement to the holder of the right. John Gentry speaks of ‘the revolution of rising expectations’ fostered by human rights as a true societal touchstone issue; the revolution, evidenced by the sweeping nature of both American and ECHR judicial interpretations, is suggested as the cause of a serious deterioration in the concept of personal responsibility.

[6] It is argued that within the broad tent of human rights, certain specific rights have primacy. In both the United States and the UK systems, civil and political rights have traditionally been afforded greater respect than economic, social or cultural rights. Civil and political rights are ones that advance and protect individualism and self expression; freedoms of assembly, religion, and property all developed organically from these roots. It is a more recent historical development that presents economic, social and cultural rights on an equal footing as that of the primary group; a distinction to be observed between the ECHR and the American Constitution is in the emphasis in the European documents on this second group. While a number of commentators have expressed the view that the desired universality of human rights does not require ‘cultural homogenisation’,

[7] the right to work, to earn a living wage, the protection of cultural expression and the promotion of health care are ‘softer’ human rights elements; the ECHR jurisprudence on these issues is more fully rounded than its American counterpart, because as is contended in this paper, the written law has led the jurisprudence –new laws have led to new interpretations.

[8] It has been suggested that human rights laws are the means by which a state, a dry and impersonal legal entity, is transformed into a vibrant and dynamic nation.

[9] In this respect the foundation human rights document in United States law, the American Constitution, has been the vehicle through which true nationhood has been attained. The Constitution as written represents a powerful codification into positive law the principles of natural law articulated by Locke and Rousseau that were dear to constitutional authors such as Thomas Jefferson.[10] The largely unwritten character of the UK constitutional system achieves a similar result through implication; the Human Rights Act, through the mechanisms discussed below, achieves a similar effect by different means. Both UK and American modern constitutional approaches to human rights presume their universality.

The language of the American Constitution establishes broad definitions of citizenship and protection against an overbearing state. As an example, the language of the Fourteenth Amendment provides that’… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ The relationship between ‘citizens’, ‘persons’ and their respective constitutional protections has been a rich source of American litigation. A powerful example of the interplay between the clear language of the American constitution, historical circumstances, societal attitudes and national emergency is found in the differing manners in which the United States reacted to the two most immediate and stunning incursions made by an enemy upon its home soil. In 1941, in the wake of the Japanese strike against Pearl Harbour in Hawaii, the United States government through its Congress authorised the detention of all persons of Japanese ancestry resident in the United States, including those persons who were American citizens. The plain language of the Fourteenth Amendment was circumscribed by the perceived threat presented by persons of Japanese ancestry. In a constitutional challenge to their internment[11], the United States Supreme Court ruled that the government action was permitted; Congress ‘…had reposed confidence in its military leadership (in recommending the detention of these persons)…’ – war powers, said the Court, must be judged within the context of war.[12] Sixty years later, the 9/11 attacks perpetrated by the Al Qaeda terrorist movement were determined to be the work of persons who originated from a primarily Saudi Arabian based Muslim sect. The United States made no movement to detain or otherwise restrict the citizenship rights of its Saudi or broader Arab Muslim minority; the United States restrictions on the travel freedoms of some members of this general class of persons was a markedly lesser response to the 9/11 emergency than that which followed Pearl Harbour; even these latter actions have attracted widespread adverse commentary[13]. It may appear that a 1941 styled response to the events of 9/11 would not accord with modern American or perceived global standards of human rights; it may be said that modern American attitudes to the notion of confining persons on the basis of ancestry or religion evolved from what in retrospect was the disagreeable treatment of American Japanese in World War Two. However, whether the United States through its treatment of ‘war on terror’ suspects has effected an improvement on its 1941 Japanese policy is open to significant question, as is illustrated below. The European human rights conventions (ECHR) that are now a part of UK law by virtue of the Human Rights Act are a useful contrast to the American approach. The language of Article 5[14] (right to liberty) is stated as an emphatic guarantee of liberty and security that is subject to limited exceptions in its application.

The Article is as sweeping in its language as that of its American counterpart. Article 6 is a recapitulation of legal rights to due process and fair trials that largely mirrors the case law developed in the American constitutional interpretations and the UK jurisprudence prior to the enactment of the Human Rights Act. In both systems, the written law does not enumerate every conceivable human rights issue that requires protection, but there is a clear attempt in both the American and the UK provisions to establish and foster a legal foundation for human rights. In an overarching fashion, individual rights are the accepted trump against the powers of the state. The definition of what constitutes a right within each constitutional framework is the subject of continual reassessment and reassertion. In both jurisdictions, the development of human rights is based upon an experiential approach, akin to trial and error processes that are re-evaluated case by case. In this sense, in theory, there is a present synthesis of law and interpretation such as that contended for in this paper – the practical realities are different. The manner in which each system has created exceptions to these broad human rights protections may define the scope of both American and UK human rights better than the primary and positive enactments themselves. The ECHR establishes the means by which an individual state may declare its derogation from the primary human rights established and confirmed by the ECHR. Article 14[15] is far more specific than the old fashioned language of the American Constitution Fifth Amendment, but the net effect is that each regime permits significant leeway to a government that perceives itself as imperilled to impose limitation so basic human freedoms. The ‘war on terror’ analysis set out below is an amplification of this point. A literal reading of each set of constitutional enactments reveals that the similarities in the extent and the protection of human rights are striking.

One would expect a similarity in judicial results through the interpretation of these laws. As the jurisprudence that has flowed from the war on terror reveals, human rights is a highly mobile and elusive concept. A further important similarity exists in the written structure of UK and American human rights protections in the context of national emergency. In both systems, the power to relax or abrogate human rights provisions is stated as a clear exception to the law, as opposed to a balancing of competing interests. The stated level of emergency provided for to permit government exceptions to the standard of human rights in each system is very high.

The ECHR derogation power noted in Article Fourteen above is conveyed in a tone that would suggest its power would be rarely invoked. The American Constitution is no less circumspect. The case law arising in both the UK and the United States in the wake of terrorist activity since 2001 has created a different legal landscape that what might reasonably be anticipated from a strict reading of the black letter constitutional law. The terrorism cases and the redefinition of human rights Korematsu established a principle of American constitutional interpretation that the right of citizenship was not absolute in war time. Further, the United States Supreme Court paid particular homage to the notion of judicial deference to the decisions of the executive and legislative branches in times of national emergency. The most striking similarity in the UK and the American case law to flow from the modern war on terror is the manner in which the respective national courts have applied this very principle. In the United States, Hamdi v Rumsfeld [16]is an instructive example.

Hamdi, an American citizen, was detained by the United States as an ‘enemy combatant’ when he was determined to have significant links to the Taliban insurgency in Afghanistan. Hamdi brought an application for habeus corpus for a judicial review of his detention; Hamdi reed primarily upon the rights afforded American citizens under the Constitution for due process.[17] In language that echoed that of the Supreme Court in Korematsu, it was held that the war making powers of the executive branch presumed expertise and experience was lodged there. The Court held that the branches of government most accountable to the people should be the ones to undertake its ultimate protection; ‘…a healthy deference’ must be shown by courts to legislative and executive judgements in military affairs.[18] The Court expressed its concern that to examine the basis of the government assertion that Hamdi was properly designated an ‘enemy combatant’ would represent an undesirable judicial ‘creep’ into a military sphere.[19] The language employed by the Court is in contrast to the Arar case as discussed below[20]. The language employed in the UK terrorism cases is powerful evidence that whatever divergences may be apparent in the course of the human rights histories of the USA and the UK, the respective judicial attitudes as to how human rights may properly be limited in times of national emergency reflect a return to the legal roots shared by these nations. In a line of cases commencing with Secretary of State for the Home Department v Rehman[21] (where the consideration and delivery of the reasons for judgement straddled the events of 9 / 11), the deportation of a Pakistani citizen whose parents resided Britain was upheld as the proper exercise of executive power and the advancement of the public good: ‘(The Secretary of State)… is entitled to have regard to the precautionary and preventative principles rather than to wait until directly harmful activities have taken place, the individual in the meantime remaining in this country. In doing so he is not merely finding facts but forming an executive judgement or assessment.[22] Lord Hoffman noted in a postscript written after 9/11 that the events in America ‘…are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security… If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.[23] The subsequent decisions of the House of Lords, particularly in A & Ors v. Secretary of State for the Home Department [24]reinforce this position. Lord Bingham employed the expression ‘great weight’ in his view of the manner in which government decisions should be considered in assessing the terrorist threat.

The court did emphasize that while national security represented the one area of national life where a court would be most leery to tread, where persons are deprived f their liberty without trial such action ‘…plainly invites judicial scrutiny of considerable intensity.’[25] The spirit of these decisions was maintained in the more recent case law that considered deportations that occurred as fall out from the ‘war on terror’, particularly as outlined in Khadir[26] and Tabnak[27]. In Khadir, Lord Mance buttressed the court view that a terrorist related deportation was supported in the ECHR jurisprudence[28] as authority for the proposition that ‘…litigation concerning immigration control does not concern the determination of a civil right within the meaning of article 6(1), despite acknowledging the major repercussions on an applicant’s private and family life or on his prospects of employment that such litigation may have…’[29] In both the American and the UK examples, the courts have employed a strict constructional division of powers analysis to establish the breadth of the permitted exceptions to otherwise available human rights protections in times of national emergency. The Arar case as outlined below is a useful illustration of where both the written law and the interpretations did not evidently prevent a breach of a fundamental human right in the name of the war against terror. Moral panic and terrorism – the Arar case Sociologist Stanley Cohen coined the expression ‘moral panic’ as a result of his studies concerning the ‘Mods versus Rockers’ social controversy in the UK in the 1960s[30]. By definition, a moral panic is a psychological disturbance to a community that is triggered by a perceived threat to the social fabric, precipitating calls for government action and a public outcry against its perpetrators. Moral panics in the shape of phenomena such as youth crime and obscenity have swept Western cultures; each has an element of being over stated and sensationalised by the media out of all proportion to actual threat posed. Terrorism and the threats posed to the safety and security of Western society generally and the United States and the UK in particular are far beyond a mere moral threat. However, the moral threat analysis may be a useful consideration in understanding that even a profound threat to national security is not without the imposition of definable human rights standards; the United States handling of the Arar incident and its conduct of the Iraq war in terms of the use of extraordinary rendition brings this question into stark focus. In 2002, Maher Arar, a Syrian born Canadian citizen, was prevented from continuing on a passenger flight to Montreal that had stopped over in New York.

American authorities, acting in conjunction with operatives involved in a Canadian security investigation concerning Arar and his possible connections to Al Qaeda and terrorism, detained Arar. Over his protests, Arar was taken from the United States and ultimately turned over to Syrian military and security personnel. Arar was detained in Syria for over 10 months, during which time he was variously questioned, tortured, and deprived of access to either legal counsel or Canadian consular officials. The information secured from Arar through the Syrian interrogation proceedings was ultimately provided to the United States as a part of its anti-terrorism activities, coupled with the military intelligence gathering process in relation to the Iraq war. In 2005, President George Bush declared that ‘…torture is never acceptable, nor do we hand over people to countries that do torture[31]’. The International Convention on Torture, to which both the UK and the United States are signatories, sets out a clear prohibition against the use of torture in any form in conjunction with military operations or prisoner detention[32]. The American Congress had passed legislation in 1998 that confirmed ‘…the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.’[33] In a similar context, the concept of extraordinary rendition is regarded as an unlawful circumvention of the torture prohibitions. This practice involves the deliberate transfer of a person to a jurisdiction that does not hold a similar regard for human rights as the sending jurisdiction in its treatment of prisoners. The Iraq war has led to significant concerns in both the United States and the UK concerning the practice[34], regarded by many observers as a breach of human rights and an indirect form of permitting otherwise illegal torture.[35] The Canadian government convened a public inquiry into the circumstances of the Arar case; the primary domestic focus was the understandable public concern that arose in Canada concerning the complicity of its official agencies in the American action.

The inquiry revealed that the United States was not prepared to recognise the fundamental rights of citizenship Arar otherwise possessed, preferring what was described as thin and tenuous connections between Arar and persons involved in terrorist activities. It is in this particular connection that the apparent wholesale breach of Arar’s human rights in New York in 2002 and perpetuated in Syria over the next year can be better understood in part with reference to the moral panic analogy. Arar represents a circumstance where the American government seemed intent on pursuing a systematic violation of human rights based upon information it knew was no more than suspicion.

The judicial reasoning in the American and UK authorities concerning the due deference to be extended to the executive branch in times of war cannot salvage actions that bear the hallmarks of Arar.[36] Further, the war on terror represents a confluence in UK and American governmental attitudes to surveillance practices that have been widely criticised as human rights violations perpetrated against its own respective nationals.[37] In the United States, the government operated a clandestine wiretap operation without warrant or other judicial sanction, in the name of the war on terror generally, and in the struggle against the Al Qaeda organisation in particular.[38] The use of executive warrants to permit wiretaps prior to the events of 2001 had provoked fierce debate in the UK. The purported overseers of UK practice, the Investigatory Powers Tribunal, adopted a policy whereby ‘…their policy is to neither confirm nor deny whether surveillance had actually taken place.’[39] The conduct of the war on terrorism with the unsavoury aspects of rendition and the use of the Guantanamo Bay facility to house detainees was one pursued as a joint enterprise by the UK and the United States. It appears that the linkage to Europe achieved through the EU and the ECHR may only know be a factor to restore divergence in attitudes towards human rights in the conduct of the war on terrorism. One commentator noted that ‘…British foreign policy after 11 September was meant to change America — to turn the Bush administration into European social democrats, or at least Christian democrats — by persuading Bush to accept that only cooperation and efforts to alleviate poverty could reduce the threat of Muslim fanaticism. That policy is dead. Britain failed because it overestimated its power and underestimated the self-confidence and bravado of the American right.’[40] If a single conclusion can be drawn from the UK and American attitudes to human rights observance during the war on terror, it is that each national government has preferred hard edged operational expediency to the persona rights wherever the two concepts have clashed. Conclusion In a profound sense, recent history illustrates that notwithstanding the combined effect of written laws and focused judicial interpretations, human rights will always risk running a poor second to the will of a government executive in war time.

The foregoing analysis is an example of how law and interpretations can be synthesised into a mechanism to identify as best as one can the permissible boundaries between executive action and an enduring respect for fundamental rights by the executive branch. Judicial interpretation alone is not enough – the written law will at least identify what protections there should be in a society – as the Thomas More of fiction expressed it – ‘…And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat?’[41] Strong written law will ultimately produce compelling yet balanced human rights protections. Bibliography ECHR Cases Maaouia v. France (2000) 33 EHRR 42 UK Cases Tabnak, R. v [2007] EWCA Crim 380 Secretary of State for the Home Department v Khadir (R on the Application of) [2003] EWCA Civ 475 A & Ors v. Secretary of State for the Home Department [2004] UKHL 56; see also the Court of Appeal ruling [2002] EWCA Civ 1502, [2004] QB 335 Secretary of State for the Home Department v Rehman [2001] UKHL 47 United States Cases Arar v. Ashcroft, 414 F.Supp.2d 250, 274 n10 (2006) Hamdi v. Rumsfeld, 542 U.S. 507 (2004) Korematsu v. United States, 323 U.S. 214 (1944) Rasul v. Bush, 542 U.S. 466 (2004) Statutes European Convention of Human Rights, 1953 UK Human Rights Act, 1998 United Nations Universal Declaration of Human Rights, 1948 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1985 United States Constitution, 1787 Secondary Sources American Bar Association (2006) National Security Law Report https://www.americanbar.org/groups/public_services/law_national_security/ (Accessed May 8, 2007) Arar Commission / Report of the Events relating to Maher Arar – Analysis and Recommendations (2006) https://www.ararcommission.ca/eng/26.htm (Accessed May 8, 2007) Baker, Nancy V. (2003) ‘National Security versus Civil Liberties’ Presidential Studies Quarterly 33, no. 3: 547+ BBC News’ (2006) MI-5 enabled UK pair’s rendition’ March 28, 2006 https://news.bbc.co.uk/2/hi/uk_news/politics/4851478.stm (Accessed May 8, 2007) Bork, Robert H. (2003) ‘Civil Liberties after 9/11’ Commentary July/August, 29+ Cohen, Nick (2002) ‘Time to Bite Back? Other Countries Got Something in Return for Backing Bush; the UK Just Carries on as America’s Poodle’ New Statesman January 28, 9+ Cohen, Stanley Folk Devils and Moral Panics: Thirtieth Anniversary Edition Routledge, 2002 Dershowitz, Alan (2004) Rights from Wrongs: A Secular Theory of the Origins of Rights New York: Basic Books Donnelly, Jack “Human Rights are universal’ Opposing Viewpoints Series Farmington Hills, NJ: Greenhaven Press, pp. 19-24 Donohue, Laura K. (2006) ‘Anglo-American Privacy and Surveillance’ Journal of Criminal Law and Criminology 96, no. 3: 1059+ Gentry, John A. “Defining Human Rights too broadly can destroy a nation’ Opposing Viewpoints Series Farmington Hills, NJ: Greenhaven Press, 48-58 Gibbs, Blair (2003) ‘Human rights are not necessarily universal’ Opposing Viewpoints Series Farmington Hills, NJ: Greenhaven Press, pp. 25 -31 Hobbes, Thomas (1651) Leviathan https://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-contents.html (Accessed May 9, 2007) Ignatieff, Michael (2001) Human Rights as Politics and Idolatry Princeton: Princeton University Press Mayer, Jane (2005) ‘Outsourcing Torture’ The New Yorker https://www.newyorker.com/archive/2005/02/14/050214fa_fact6 (Accessed May 8, 2007) 1

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Footnotes

[1] Dershowitz, Alan (2004) Rights from Wrongs: A Secular Theory of the Origins of Rights New York: Basic Books, 59, 64

[2] Gibbs, Blair (2003) ‘Human rights are not necessarily universal’ Opposing Viewpoints Series Farmington Hills, NJ: Greenhaven Press, 28

[3] Ignatieff, Michael (2001) Human Rights as Politics and Idolatry Princeton: Princeton University Press, 4, 5

[4] Dershowitz, 81

[5] Hobbes, Thomas (1651) Leviathan 8

[6] Gentry, John A. “Defining Human Rights too broadly can destroy a nation’ Opposing Viewpoints Series Farmington Hills, NJ: Greenhaven Press, 51, 52

[7] Donnelly, Jack “Human Rights are universal’ Opposing Viewpoints Series Farmington Hills, NJ: Greenhaven Press, 24

[8] See the variety of cases determine annually by the European Court of Human Rights, coupled with the UK considerations of national statute compatibility with the ECHR

[9] Gentry, John A., 50 [10] Ignatieff, 69 [11] Korematsu v. United States, 323 U.S. 214 (1944) [12] Ibid, 221 [13] See as examples Baker, Nancy V. (2003) ‘National Security versus Civil Liberties’ Presidential Studies Quarterly 33, no. 3: 547+; Bork, Robert H. (2003) ‘Civil Liberties after 9/11’ Commentary July/August, 29+ [14] European Convention of Human Rights, 1953, Articles 5 and 6 [15] The key expression with in the Article stated as’ … may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation…’ [16] Hamdi v. Rumsfeld, 542 U.S. 507 (2004) [17] Ibid, 5th Amendment [18] Ibid [19] Ibid; see also Rasul v. Bush, 542 U.S. 466 (2004) [20] Arar v. Ashcroft, 414 F.Supp.2d 250, 274 n.10 (EDNY 2006); see also the Canadian Commission report, infra [21] Secretary of State for the Home Department v Rehman [2001] UKHL 47 [22] Ibid, para 23 [23] Ibid, para 62 [24] [2004] UKHL 56; see also the Court of Appeal judgement at [2002] EWCA Civ 1502, [2004] QB335, where the Court emphasised the ‘inevitable trust and professionalism of the Security Service’ [25] [2004] UKHL 56 [26] [2003] EWCA Civ 475 [27] [2007] EWCA Crim 380 [28] Maaouia v. France (2000) 33 EHRR 42 [29] Khadir, para 86 [30] Cohen, Stanley Folk Devils and Moral Panics: Thirtieth Anniversary Edition Routledge, 2002 [31] Mayer, Jane (2005) ‘Outsourcing Torture’ The New Yorker , 1 [32]United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1985 [33] Mayer, 2 [34] American Bar Association (2006) National Security Law Report, pp. 1-8 [35] BBC News’ (2006) MI-5 enabled UK pair’s rendition’ March 28, 2006 [36] See also the US litigation, Arar v. Ashcroft, 414 F.Supp.2d 250, 274 n.10 (EDNY 2006) [37] Donohue, Laura K. (2006) ‘Anglo-American Privacy and Surveillance’ Journal of Criminal Law and Criminology 96, no. 3: 1059+ [38] Ibid, 1059, 1068, 1072 [39] Ibid, 1079 [40] Cohen, Nick (2002) ‘Time to Bite Back? Other Countries Got Something in Return for Backing Bush; the UK Just Carries on as America’s Poodle’ New Statesman January 28, 9+ [41] Bolt, Peter ‘A Man for all Seasons’, Act 1, scene 7

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