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Miscarriages of Justice and Exceptional Procedures in the ‘War against Terrorism’

Author : Centre for European Policy Studies (CEPS)

Emmanuel-Pierre Guittet, September 2008

The object of this paper is to question the logic of generalised suspicion in indictment and detention procedures in the context of the war on terrorism, in order to understand the legal oscillation between resistance and deference to intelligence data in the judgment of terrorist acts. To illustrate these various forms of judicial resistance/deference, we closely examine three cases of judicial abuse in the fight against terrorism, corresponding to three different chronological and socio-political moments: the ‘Guildford Four’ in Northern Ireland (1974), the judicial condemnation and constitutional ban of Batasuna, the Basque nationalist party in Spain (2002) and the Maher Arar case in Canada (2002). Behind the screen of an elastic conception of public security, the primacy of an intelligence-based rationale over the judicial process results in tensions between the attribution of guilt and the rendering of justice that distort classical judicial procedures and the principle of a fair trial. Moreover, such tensions eventually legitimise proactive and preventive strategies that lead to condemnation through allegations of terrorism rather than proof.

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