Oxford Thinktank Questions Judicial Intervention in Terror Cases

PRESS RELEASE

The Foundation for Law, Justice and Society (FLJS), in collaboration with the Aspen Institute, have questioned recent judicial actions in the cases of Guantanamo detainees, in a report published today. The report, written by Daniel Butt of Oxford University, presents the findings of a workshop organized by FLJS, held at the Aspen Institute in 2008. It examines the use of detention without trial, and questions whether the courts can be trusted during national security, political, and communal crises to protect civil liberties and provide an effective check on executive power.

As Binyam Mohamed’s revelations regarding his alleged torture in Pakistan, Afghanistan, and Guantanamo Bay continue to cause conflict between the judges and the Foreign Office and jeopardize Anglo-American intelligence sharing, the report suggests other unintended consequences of judicial activism: “Guantánamo cases have created greater incentives to detain suspects elsewhere, such as in other countries, in what are likely to be less humane conditions”. It also questions whether the stance of the US Supreme Court in restraining executive power in Guantánamo cases would be maintained if the US is subject to a terror attack early in the Obama administration.

Whilst acknowledging the benefits of a strong, independent judiciary in providing checks and balances during times of national security and communal crisis, such as that seen recently in Gaza and Northern Ireland, the report sounds a note of caution regarding the extent of such intervention in sensitive political issues. The report is published as part of the Foundation’s Courts and the Making of Public Policy programme, which examines the validity and effect of the judiciary’s role in influencing public policy issues.

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Notes for editors

• ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­The conference entitled ‘In Times of Crisis Can We Trust the Courts?’ was held at the Aspen Institute on 7-9 July 2008, in conjunction with the Aspen Institute’s Justice and Society program. The conference was opened with a lecture by Professor AWB Simpson on ‘Detention without Trial in Wartime Britain’, available as a podcast.

• The lecture was followed by a two-day workshop on 8-9 July, in which a roundtable of experts discussed the role of courts during political, national security, and communal crisis. Participants included Justice Rosalie Abella from the Supreme Court of Canada; Clark Ervin, former Inspector General at the Department of Homeland Security (Bush Administration); and Judge Abner Mikva, former Counsel to President Clinton. Full programme and participant details are available to download.

• The Foundation for Law, Justice and Society is an independent institution affiliated with the Centre for Socio-Legal Studies at the University of Oxford.

• Founded in 2005, the mission of the Foundation is to study, reflect on and promote an understanding of the role that law plays in society. This is achieved through our programmes examining the role of Courts in the Making of Public Policy, the Social Contract, Rule of Law in China, and Constitutionalism.

• The Foundation draws on the work of scholars and researchers, and aims to make its work easily accessible to professionals in government, business, or the law.

http://www.fljs.org

• For more information, please contact Phil Dines, Communications Manager:

+44 (0)7809 219 543 (mobile); +44 (0)1865 284433 (day)

phil.dines@fljs.org

About the authors

• Daniel Butt is the Programme Director of the Foundation for Law, Justice and Society’s research programme entitled Courts and the Making of Public Policy, and Fellow and Tutor in Politics at Oriel College, Oxford, where he teaches and lectures on both political theory and political science.

• Fionnuala Ní Aoláin is the Dorsey & Whitney Chair in Law at the University of Minnesota Law School and Professor of Law and Director of the Transitional Justice Institute at the University of Ulster in Northern Ireland. Her research interests are in the areas of international human rights law, national security law, transitional justice and feminist theory.

• Matthew Waxman is an expert in the domestic and international legal aspects of fighting terrorism, and holds a J.D. from Yale Law School. He clerked for Associate Supreme Court Justice David H. Souter and Judge Joel M. Flaum of the U.S. Court of Appeals for the Seventh Circuit, and served in senior positions at the U.S. State Department, Department of Defense and National Security Council. He has authored several books on the use of military force as an instrument of American foreign policy.

• Steven R. Shapiro is the Legal Director of the American Civil Liberties Union, America’s oldest and largest civil liberties organization. He directs a staff of approximately 90 full-time lawyers who maintain a large and active docket of civil liberties cases. Shapiro has been the ACLU's Legal Director since 1993, and has appeared as counsel or co-counsel on more than 200 ACLU briefs submitted to the United States Supreme Court.

• Lisa L. Miller is an Associate Professor of Political Science at Rutgers University in New Jersey. Her research interests are at the intersection of law and social policy.