Free On Liberty by Shami Chakrabarti

catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.
    … The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory. *
    This may have been Lord Hoffmann’s most lyrical hour. Naturally, my Liberty colleagues and I agreed with him, to the extent of taking out a full-page newspaper advert the next day quoting his final eloquent flourish about the ‘real threat to the life of the nation’ under the banner: ‘Guantanamo Bay – closer than you think’. By doing this, we were urging the government to reflect and amend the shameful, unjust and counterproductive law. On reflection, what the majority of Law Lords did was more astute. They effectively deferred to the government on the issue of the nature of any emergency that may or may not have existed. Judges, after all, are not – and in my view should not be – privy to any secret intelligence assessments that are not made available for scrutiny by the press, public, prisoners and suspects.
    Instead the majority relied on the cold forensic legal logic that senior judges do so much better than politicians and campaigners. Whatever the intelligence assessment or debate about whether a particular threat can be called an emergency, the discrimination argument was inescapable and effortlessly non-political in its reasoning.
The Attorney General submitted that the position of the appellants should be compared with that of non-UK nationals who represented a threat to the security of the UK but who could be removed to their own or to safe third countries. The relevant difference between them and the appellants was that the appellants could not be removed. A difference of treatment between the two groups was accordingly justified and it was reasonable and necessary to detain the appellants. By contrast, the appellants’ chosen comparators were suspected international terrorists who were UK nationals. The appellants pointed out that they shared with this group the important characteristics a) of being suspected international terrorists and b) of being irremovable from the United Kingdom. Since these were the relevant characteristics for the purposes of the comparison, it was unlawfullydiscriminatory to detain non-UK nationals while leaving UK nationals at large.
    Were suspected internationals who were UK nationals, the appellants’ chosen comparators, in a relevantly analogous situation to the appellants? … In my opinion, the question demands an affirmative answer. Suspected international terrorists who are UK nationals are in a situation analogous with the appellants because, in the present context, they share the most relevant characteristics of the appellants … The comparison contended for by the Attorney General might be reasonable and justified in an immigration context, but cannot in my opinion be so in a security context, since the threat presented by international terrorists did not depend on their nationality or immigration status. *
    A terrorist atrocity in London less than a year later would prove them absolutely right. When nations are not at war in the conventional sense and the battle is either one of ideology or pure victimhood, British nationals are just as capable of abomination as their foreign