The Legacy of 9/11: A Historical Look

The Legacy of 9/11: A Historical Look

The events of 11 September 2001 took many by surprise. The aftermath has many questioning what was the correct response. The decisions to invade Afghanistan and Iraq have been widely criticised and remain contentious to this day. An alternative option would have been to treat the events of that day not as a declaration of war but instead as individual homicides perpetrated by a criminal organisation and prosecute those responsible.

This alternative would fall within a commonly held view that it is essential, in the interests of justice, to extend to terrorists the same trial process offered to those charged with non terrorism related crimes. The aftermath of Osama Bin Laden’s death [1] is an example of this. Is justice achieved by this approach?

Terrorism is not new.

[/one_fifth] [four_fifth_last]Terrorism is not new.

One does not need to look very far into the past to see the lessons of history in how the criminal justice system has dealt with those alleged to have committed terrorist acts. Historically the veil of terrorism has allowed: liberty impeding legislation to be introduced; innocents to to be charged and convicted for crimes they have not committed; and detention for those who are suspected, and not proven to a legal standard, of being terrorists.

Consider the cases of R v Richardson (Times, October 20, 1989) and R v Maguire [1992] Q.B. 936. Outside legal circles they are respectively known as the Guildford Four and the Maguire Seven. The Guildford Four were found guilty of bombing locations in Guildford after police extracted coerced confessions. The Maguire Seven were convicted of handling explosives found during the investigation into the Guildford bombings. These cases demonstrate the lengths that some individuals will go to in order to hold someone accountable for terrorist acts.[/four_fifth_last]

Lord Denning’s controversial statement on the Guildford Four highlights the dangers of the criminal justice system’s involvement in dealing with terrorists. He is quoted in Iris Freeman’s book Lord Denning – A Life:

They’d probably have hanged the right men. Just not proved against them, that’s all. [2]

It is fortunate that England removed capital punishment in 1967 as a lawful method of punishing criminals otherwise the view Lord Denning held, and the view of the Trial Judge, Justice John Donaldson, dramatised in the 1993 film In the Name of the Father, would have been realised and four alleged terrorists would have been executed when the true terrorists were still at large.

It is not however an isolated incident. Consider also the case of R v McIlkenney (1991) 93 Cr.App.R. 287. This is better known outside legal circles as the Birmingham Six case. The Birmingham Six were found guilty of bombing pubs in Birmingham amid police fabricating and supressing evidence and coercing confessions. Lord Denning is quoted in Evan Whitton’s The Cartel: Lawyers and their Nine Magic Tricks as remarking on the Birmingham Six case:

Hanging ought to be retained for murder most foul. We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten, and the whole community would be satisfied… It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned. [3]

These examples, from the height of the IRA campaign on England, demonstrate that even though the noblest intention – justice – was at the heart of what was sought at the outset of the investigation into the terrorist incidents, justice can easily be corrupted by those who are more concerned with ensuring someone takes responsibility for terrorism rather than holding the right people responsible.

Lord Denning, in McIlkenny v Chief Constable of the West Midlands [1980] Q.B. 283 at 323, appallingly said:

Just consider the course of events if their [the Six’s] action were to proceed to trial … If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend that they be pardoned or to remit the case to the Court of Appeal. That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further.’ They should be struck out either on the ground that the men are stopped from challenging the decision of Mr. Justice Bridge, or alternatively that it is an abuse of the process of the court. Whichever it is, the actions should be stopped. [3]

It is obvious that the lessons of the 1970s and 1980s have not been learned. In addition to detaining those who have not been proven, to any legal standard, to have responsibility for terrorist activities, the courts have been tasked with considering whether measures designed to impede the liberty of suspected terrorists are compatible with the Human Rights Act 1998 [4] and whether suspicion was enough to issue an asset freezing order [5]. Post 9/11 it is still now more important to hold someone, anyone, accountable than it is to hold the right people accountable. It is still more important to obtain information by any means necessary than it is to acquire the information lawfully.

Consider the factual scenario behind the decision Binyam Mohamed v The Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 [6]. Mr Mohamed alleges that not only was he subjected to extraordinary rendition and torture, but that British intelligence colluded with the interrogators.

In light of the post 9/11 search for justice maintaining many of the regrettable hallmarks of previous campaigns against terrorism, has justice been served? Would it have been better to determine a list of those individuals responsible and mete out extrajudicial punishment by individual States? Despite Osama Bin Laden not receiving a fair trial, being found guilty and sentenced accordingly, many think the mission which resulted in his death achieved justice – he got what he deserved.

Many think the mission which resulted in his death achieved justice – he got what he deserved.

To answer whether justice has been served it is helpful to look to the past. Arguably the Nazi Party was responsible for the most heinous, reprehensible and calculated program of terror against those individuals it deemed not fit to live in their society. Those who remained when the Second World War was over were located, tried and punished. It was important in a post Second World War world that the victors extended to the Nazis what they did not offer to their victims – a right to a fair trial – to demonstrate that the rule of law was important.

The legacy of 9/11 is that as terrorist methods have changed, so has the way in which it is considered appropriate to deal with terrorists. They are a special breed of criminal. Concessions are made to human rights, to due process, to the presumption of innocence until proven guilty because it is more important to protect the majority than it is to safeguard the freedoms and rights of a few. The legacy of 9/11 should be, however, that no matter who you are or what you are accused of, you have the right to a fair trial and to be presumed innocent until proven guilty. Has justice been achieved in this case?

  • [1] The BBC – View Article
    [2] Page 412 – Lord Denning – A Life. Freeman, Iris (1993)
    [3] Page 117 – The Cartel: Lawyers and their Nine Magic Tricks. E Whitton (1988)
    [4] Secretary of State for the Home Department v AP [2010] UKSC 24; [2011] 2 A.C. 1 – View PDF Judgment
    [5] HM Treasury v Ahmed [2010] UKSC 5; [2010] 2 A.C. 534 – View PDF Judgment
    [6] Binyam Mohamed v The Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 – View Judgment
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