In “The British Way”, two lawyers summarize how the U.K. and the U.S. differ in their approaches to investigating terrorism. Some of the British advantages are institutional, such as a less disloyal bureaucracy and longer experience in dealing with terrorism, “thanks” to years of fighting the IRA, but others should chill the heart of “Constitution-as-suicide-pact” civil libertarians:
British officials need not meet the very strict requirement of “probable cause” to obtain warrants that U.S. investigative bodies must satisfy under the Bill of Rights. In Britain, a warrant can generally issue on a showing of “reasonable suspicion.”
In addition, the British police have certain extraordinary tools designed specifically to fight terrorism. These include “control orders” issued by the Home Secretary [not, nota bene, by a judge] that not only allow the police to monitor terror suspects, but also – although the more stringent ones are the subject of continuing legal challenges – permit the police at the minimum to monitor and restrict terror suspectmovements. . . .
Although the British virtually invented the notion of personal privacy – the saying “an Englishman’s home is his castle” can be traced at least to the 16th century – the concept is not as broadly defined in law or politics as in contemporary America. For example, virtually all public spaces in Britain are surveilled round the clock by cameras, and the government engages in extensive data-miningoperations. . . .
[T]here appears to be much less hostility in Britain toward government secrecy in general, and little or no tradition of “leaking” highly sensitive information as a regular part of bureaucratic infighting – perhaps because the perpetrators could far more easily be punished with criminal sanctions under the Official Secrets Act in the U.K. than under current U.S. law.
Many of these British practices are quite repugnant as day-to-day police powers. I’d prefer a few more burglars and shoplifters to a “reasonable suspicion” standard for warrants, executive issuance of “control orders” and 24/7 government surveillance of the commons. On the other hand, those burdens are preferable to 9/11. While we are at war with groups whose major tactic is brutal attacks on civilians, moving toward “the British way” is distinctly the lesser evil. When peace returns – and the more robust our anti-terrorist measures, the sooner that will be – we can, and should, go back to the status quo ante. In the meantime, while we should remain vigilant against the misuse of anti-terrorist means for personal or partisan ends, let’s not fantasize that wars of this kind can be won through playing by the Marquis of Miranda rules.
Nowhere in your (or the WSJ's) defense of exteme police methods is there any statement of fact which would demonstrate how the arrest of the alleged participants in a plot to destroy multiple US bound aircraft was made any less difficult for the British authorities acting under British law than it would have been for American authorities acting under current US law. So far as it has been revealed in the press, there has been nothing to even suggest that the surveillance, pursuit and arrest of these individuals would in any way have been problematic for US law enforcement had they been operating within their jurisdiction. It is only the rabid right wing press that persists in the notion that somehow British authorities have more lattitude than their American brethern who are so unfortunately hindered by the Constitution. If only we could return to the days before Miranda, they say, when police interrogation included the plausible threat of violence, why then we could deal with those terrorists at long last.
I especially enjoyed the WSJ's comment that " Having an intelligence service operate for years in a state of virtual rebellion against its political masters--as has been the case with the CIA during the Bush administration--would be unthinkable in Britain". This is especially hilarious in light of the Downing Street Memo which advised the Prime Minister that the intelligence was being "fixed around the policy" in promotion of the war in Iraq. Perhaps you believe that intelligence services should merely parrot the prejudices of the political "masters", but the professional majority in the service believe, through hard won experience, that the integrity of the intelligence is infinitely more valuable. At the very least, fealty to honest information can help avoid unnecessary wars of choice, the waste of precious assets, including lives and wealth, and distraction from more pressing duties such as tracking and aphrehending potential terrorists.
Your willingness to suspend the Constitution without regard to whether or not such an extreme act would even be marginally necessary to control terrorism reveals that, in fact, you are an enemy of the Constitution, willing to seize on the first opportunity to cast aside the rule of law.
pbh
Posted by: Peter Hodges | Tuesday, August 15, 2006 at 07:06 AM