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Similarities Between the U.S. and the UK in Fighting Terrorism

LEGISLATION: both countries responded to the threat by legislation (the U.S.A. PATRIOT Act 2001, the UK Terrorism Act 2000).

NON-NATIONALS: in the UK and the U.S. the anti-terrorist legislation was firstly directed against those who were not citizens and who therefore had no absolute right to remain in the country. In both countries, discrimination against non-citizens was a deliberate administration policy (especially against immigrants from Arab and Muslim countries).

DETENTION WITHOUT CHARGE OR TRIAL: both countries have adopted the practice of detaining suspects indefinitely without charge or trial (especially Arabs and Muslims) on the strength of vague, anonymous accusations (the case of Guantanamo Bay is very well known).
Under Bush administration three main cases arose, in which the Supreme Court ruled against the administration: Rasul v. Bush (on whether a non-citizen detainee had a statutory right to challenge his detention in a U.S. court), Hamdan v. Rumsfeld (entitling detainees to the right of a guaranteed trial and to claim habeas corpus petitions before a federal court) and Boumediene v. Bush (the detainees have a constitutional right to habeas corpus).
The UK response was less hard, and it was initially directed to foreign nationals with no right to live in the UK, who were suspected of involvement in terrorism, but who could not be deported to their home countries because they ran a risk of being tortured there. The solution was found derogating from art. 5 of the ECHR and detaining foreign nationals suspected of involvement in terrorism even where they could not be deported. However, in some cases such derogation was challenged, as in Belmarsh case, when the UK Court of Appeal said that the derogation was not founded on an effective threat to national security and was thus inconsistent with the UK’s obligations under the Convention.

FAIR HEARING GUARANTEES: both countries started an erosion of fair hearing guarantees. Under the idea of extraordinary powers, the PATRIOT Act authorized violations of the principle of fair trial, not only in relation to non-nationals but also progressively to citizens.

TORTURE: both the U.S. and the UK are parties of the Geneva Conventions (1949), the I nternational Covenant on Civil and Political Rights (1966), the UN Convention Against Torture, and the UK is also party to the ECHR. However, U.S. officials have, as a deliberate act of policy, rewritten the definition of torture and have inflicted treatment which most of the rest of the world has judges as torture (see the case of Guantanamo Bay), basing on a fine distinction between torture and cruel treatment.
The UK doe not appear to have resorted to torture as an instrument of policy, but it cannot be said that it has shown an implacable hostility to torture  and its fruits.

SURVEILLANCE: both countries have heightened surveillance by governmental authorities of members of the public. In both cases the increase in the level of surveillance has been a consequence of 9/11, and in England the bombings of July 2005 were another element that strengthened this feature.

THE WAR IN IRAQ: the UK and the U.S. were joint in their invasion of Iraq that, as expressed above, can be well considered as a strong violation of the ROL.

In sum, the main principle in dealing with terrorism should be the one expressed by the Council of Europe in 2002: a state should not respond to such threat using indiscriminate measures which would only undermine the fundamental values they seek to protect (first of all the ROL).
di Luca Porcella
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