Humpty Dumpty Rules or the Rule of Law: Legal Theory and the Adjudication of National Security DAVID DYZENHAUS* I know of only one authority which might justify the suggested method of construction. "When I use a word, Humpty Dumpty said in rather a scornful tone it means just what I choose it to mean, neither more nor less. The question is, said Alice, "whether you can make words mean so many different things. ""The question is, said Humpty Dumpty, which is to be master-that's all. .. After all this long discussion the question is whether the words 'If a man has'can mean 'If a man thinks he has. 'I am of the opinion that they cannot and that the case should be decided accordingly Lord Atkin, dissenting, Liversidge r Anderson, 1942 AC 207 at 245 Introduction Anti-terrorism legislation is in vogue after the terrible attacks on the United States of America in September 2001. It is not immediately clear why this should be so, even if there were a credible case to be made that the countries rushing to be fashionable are under real and novel threat. Their criminal law already makes any terrorist act a crime(with the exception perhaps of international money laundering) and a much more plausible reaction would be to devote more resources, on the international level, to understanding and dealing
1 Humpty Dumpty Rules or the Rule of Law: Legal Theory and the Adjudication of National Security DAVID DYZENHAUS* I know of only one authority which might justify the suggested method of construction. ‘“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master – that’s all.” …’ After all this long discussion the question is whether the words ‘If a man has’ can mean ‘If a man thinks he has.’ I am of the opinion that they cannot, and that the case should be decided accordingly. Lord Atkin, dissenting, Liversidge v Anderson, [1942] AC 207 at 245 Introduction Anti-terrorism legislation is in vogue after the terrible attacks on the United States of America in September 2001. It is not immediately clear why this should be so, even if there were a credible case to be made that the countries rushing to be fashionable are under real and novel threat. Their criminal law already makes any terrorist act a crime (with the exception perhaps of international money laundering) and a much more plausible reaction would be to devote more resources, on the international level, to understanding and dealing
with the political situations in which terrorism is fomented and, on the domestic level,to rethinking and strengthening security and intelligence. Terrorist legislation is not only an inherent threat to civil liberties but, as the dismal history of the implementation of the legislation shows, of little use in eradicating terrorism. History teaches us that the crimes of terrorism are best dealt with by using the ordinary law of the land effectively and that those caught in the net cast by terrorism statutes are more often than not the other'or the 'alien'-the illegal immigrants, the refugees who had opposed the political regime of their native land, people with a different skin colour, homegrown political dissidents, or anyone else who is already marginal or whom powerful groups would prefer to be marginal Indeed, those who take comfort in their homogeneity -in the fact that they are not other or alien-when terrorist legislation is enacted should note what Audrey Macklin has termed laws role in producing the alien within. Such legislation shifts the category of alien enemy out of the legal arena in which it often goes unnoticed because we don' t care much about those who have fragile legal status in our societies, or even want them out as soon as possible -refugee claimants and people subject to deportation because they are not yet citizens. It shifts the category of the alien into the ordinary law of the land, where the I On these points, see most of the essays in Ronald J Daniels, Patrick Macklem and Kent Roach(eds), Tbe Security of Freedom: Essays on Canadas Anti-Terrorism Bill ( University of Toronto Press, Toronto, 2001), especially the essays in the section, Criminalizing Terrorism, and on security, Mariana Valverde, Governing Security Governing Through Security,, 83. See also Adam Tonkins, ' legislating Against Terror: the Anti-Terrorism, Crime and Security Act 20012002] Public law 205. As Tonkins notes, the United Kingdom has derogated from the European Convention on Human Rights in respect of this statute 2 Audrey Macklin, Borderline Security, in Daniels, above n 1, 383, at 398
2 with the political situations in which terrorism is fomented and, on the domestic level, to rethinking and strengthening security and intelligence.1 Terrorist legislation is not only an inherent threat to civil liberties but, as the dismal history of the implementation of the legislation shows, of little use in eradicating terrorism. History teaches us that the crimes of terrorism are best dealt with by using the ordinary law of the land effectively and that those caught in the net cast by terrorism statutes are more often than not the ‘other’ or the ‘alien’ – the illegal immigrants, the refugees who had opposed the political regime of their native land, people with a different skin colour, homegrown political dissidents, or anyone else who is already marginal or whom powerful groups would prefer to be marginal. Indeed, those who take comfort in their homogeneity – in the fact that they are not other or alien – when terrorist legislation is enacted should note what Audrey Macklin has termed ‘law’s role in producing the alien within’.2 Such legislation shifts the category of alien enemy out of the legal arena in which it often goes unnoticed because we don’t care much about those who have fragile legal status in our societies, or even want them out as soon as possible - refugee claimants and people subject to deportation because they are not yet citizens. It shifts the category of the ‘alien’ into the ordinary law of the land, where the 1 On these points, see most of the essays in Ronald J Daniels, Patrick Macklem and Kent Roach (eds), The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (University of Toronto Press, Toronto, 2001), especially the essays in the section, Criminalizing Terrorism, and on security, Mariana Valverde, ‘Governing Security, Governing Through Security’, 83. See also Adam Tonkins, ‘Legislating Against Terror: the Anti-Terrorism, Crime and Security Act 2001’ [2002] Public Law 205. As Tonkins notes, the United Kingdom has derogated from the European Convention on Human Rights in respect of this statute. 2 Audrey Macklin, ‘Borderline Security’, in Daniels, above n 1, 383, at 398
ineliminably vague and political understandings of terrorist' and 'national security give to the executive a wide scope for dealing conveniently with those it considers to be threats I will not try here to answer the very interesting question of why the United States of America is in the moral panic that still seems to grip that nation or why so many other countries have succumbed to that same panic. Rather, I want to deal with the lawyers question, 'What is the proper legal response to terrorism statutes?where propermeans in light of our commitments to the rule of law. Since it is controversial what the content is of the rule of law, the lawyers question is, as we will see, also the legal philosophers question about the nature of law -how to unpack the idea of law in the phrase the rule of law Note that the lawyer's question might seem to be badly posed, since the proper response to terrorism is often thought to be a response outside, or largely outside, of the rule of law. The political issues involved seem outside the scope of control by law, where control means scrutiny by judges of the legality of executive decisions and action about national security. It is interesting in this regard that two of the most eminent constitutional lawyers in the USA men who have traditionally supported Democratic civil rights causes, are reputed to have testified to legislative committees in favour of President Bushs kangaroo, military tribunals Moreover, eminent judges in the common law world began to adopt something like this same reaction in anticipation of their country either getting a terrorism statute or revising the egal regime it already had for dealing with terrorism. If judges adopt such a stance in advance of any change of the law on the statute books, it will surely follow that the stance can only be invigorated after the change has been made
3 ineliminably vague and political understandings of ‘terrorist’ and ‘national security’ give to the executive a wide scope for dealing conveniently with those it considers to be threats. I will not try here to answer the very interesting question of why the United States of America is in the moral panic that still seems to grip that nation or why so many other countries have succumbed to that same panic. Rather, I want to deal with the lawyer’s question, ‘What is the proper legal response to terrorism statutes?’ where ‘proper’ means ‘in light of our commitments to the rule of law’. Since it is controversial what the content is of the rule of law, the lawyer’s question is, as we will see, also the legal philosopher’s question about the nature of law - how to unpack the idea of law in the phrase ‘the rule of law’. Note that the lawyer’s question might seem to be badly posed, since the proper response to terrorism is often thought to be a response outside, or largely outside, of the rule of law. The political issues involved seem outside the scope of control by law, where control means scrutiny by judges of the legality of executive decisions and action about national security. It is interesting in this regard that two of the most eminent constitutional lawyers in the USA, men who have traditionally supported Democratic civil rights causes, are reputed to have testified to legislative committees in favour of President Bush’s kangaroo, military tribunals. Moreover, eminent judges in the common law world began to adopt something like this same reaction in anticipation of their country either getting a terrorism statute or revising the legal regime it already had for dealing with terrorism. If judges adopt such a stance in advance of any change of the law on the statute books, it will surely follow that the stance can only be invigorated after the change has been made
here is, as we will see, one important difference between this academic response-the rule f law has no or little purchase when it comes to issues of national security-and the ldicial response Judges are unwilling to say that their role as guardians of the rule of law is either at an end or greatly reduced. Indeed, it seems impossible for them to conceive of their role other than as guardians of the rule of law and so, short of saying that they have no role to play in respect of a particular statute, they will claim that they are still upholding the rule of law There is, I will argue, something deeply interesting in the tension such judges experience Once we understand that tension, we have not only a better understanding of the basis for answering the question, "What is the rule of law?, but also a sense of how different camps in legal philosophy are helpful or unhelpful in constructing the proper, rule of law response to terrorism statutes. I will start by exploring that tension through a rather detailed analysis of two recent judicial decisions, one of the House of Lords, the other of Canada's Supreme Court. I will then explore the theoretical implications of the tension, as well as the implications of different legal theories for both its characterisation and resolution. Since the first step requires what for many will seem a tedious wade through a tunnel o administrative law, I should say that the theoretical light I purport to find at the end has to do with the role of legal positivism. I will argue, against the main trend in contemporary legal positivism, that legal positivism is committed for political reasons to a formal conception of the separation of powers and that it is this commitment that proves unhelpful in judicial review in general, and in particular in judicial review of national security decisions
4 There is, as we will see, one important difference between this academic response – the rule of law has no or little purchase when it comes to issues of national security - and the judicial response. Judges are unwilling to say that their role as guardians of the rule of law is either at an end or greatly reduced. Indeed, it seems impossible for them to conceive of their role other than as guardians of the rule of law and so, short of saying that they have no role to play in respect of a particular statute, they will claim that they are still upholding the rule of law. There is, I will argue, something deeply interesting in the tension such judges experience. Once we understand that tension, we have not only a better understanding of the basis for answering the question, ‘What is the rule of law?’, but also a sense of how different camps in legal philosophy are helpful or unhelpful in constructing the proper, rule of law response to terrorism statutes. I will start by exploring that tension through a rather detailed analysis of two recent judicial decisions, one of the House of Lords, the other of Canada’s Supreme Court. I will then explore the theoretical implications of the tension, as well as the implications of different legal theories for both its characterisation and resolution. Since the first step requires what for many will seem a tedious wade through a tunnel of administrative law, I should say that the theoretical light I purport to find at the end has to do with the role of legal positivism. I will argue, against the main trend in contemporary legal positivism, that legal positivism is committed for political reasons to a formal conception of the separation of powers and that it is this commitment that proves unhelpful in judicial review in general, and in particular in judicial review of national security decisions
Resiling from the rule of law? In Secretary of State r Rebman, ' the House of Lords dealt with the following issue. Rehman was a Pakistani national with temporary leave to stay in the United Kingdom. The security service had determined that he was involved with an Islamic terrorist organization and that, while it was unlikely that he would ever commit acts of violence in the United Kingdom, his activities were intended to further the cause of a terrorist organization abroad. On that basis the secretary of state ordered that rehman be deported In terms of Section 15()of the Immigration Act 1971, Rehman was deprived of any right to appeal against such an order because the ground of the decision was that his deportatio conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for reasons of a political nature Prior to 1997, there had existed what Lord Woolf in the Court of Appeal described as a non-statutory advisory procedure which allowed the deportee to appear before three advisors'to make representations to them and the three then advised the secretary of State as to whether he should adhere to his decision In ChabalrUk, the European Court of Human Rights held that the advisory penal did not give an effective remedy in terms of article 13 of the European Commention of Human Rights and Fundamental Freedom.s as it was not a '. The government responded with a statute in 1997 which established the Special Immigration Appeals Commission, a three person panel 32002 1 All ER 123, hereafter Rebman HI 42000 3 A ER 778, at 782, hereafter Rehman AC 5( 1996)23 EHRR 413, hereafter Chahal
5 Resiling from the rule of law? In Secretary of State v Rehman, 3 the House of Lords dealt with the following issue. Rehman was a Pakistani national with temporary leave to stay in the United Kingdom. The security service had determined that he was involved with an Islamic terrorist organization and that, while it was unlikely that he would ever commit acts of violence in the United Kingdom, his activities were intended to further the cause of a terrorist organization abroad. On that basis, the Secretary of State ordered that Rehman be deported. In terms of Section 15(3) of the Immigration Act 1971, Rehman was deprived of any right to appeal against such an order because the ‘ground of the decision was that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for reasons of a political nature.’ Prior to 1997, there had existed what Lord Woolf in the Court of Appeal described as a ‘non-statutory advisory procedure’ which allowed the deportee to appear before ‘three advisors’ to make representations to them and the three then advised the Secretary of State as to whether he should adhere to his decision.4 In Chahal v UK, 5 the European Court of Human Rights held that the advisory penal did not give an ‘effective remedy’ in terms of article 13 of the European Convention of Human Rights and Fundamental Freedoms as it was not a ‘court’. The government responded with a statute in 1997 which established the Special Immigration Appeals Commission, a three person panel 3 [2002] 1 All ER 123, hereafter Rehman HL. 4 [2000] 3 All ER 778, at 782, hereafter Rehman AC. 5 (1996) 23 EHRR 413, hereafter Chahal