July 23, 2007
What we owe 'suspected terrorists'—A Commentary by Bruce Ackerman '67
The following commentary was published on the Guardian’s website on July 23, 2007.
A new wave of anti-terrorism initiatives is sweeping Europe, with Britain and Germany in the lead. Jacqui Smith and Wolfgang Schauble have recently been talking tough on behalf of their governments, and the fate of their trial balloons is sure to have a broad effect elsewhere.
So it is time to place a new proposal on the table. Whatever else they do, governments should pledge substantial compensation to all terrorist suspects who are detained and then found innocent of any criminal involvement. British law already permits detention without charge for 28 days, and the Brown government seems intent on allowing judges to extend this term further in particular cases.
Such a decision would have large consequences after the next major attack. When a bomb kills hundreds or thousands, the police will predictably cast a wide net, sweeping up thousands of suspects even though most will turn out to be innocent. Only a very brave judge will take responsibility for freeing a detainee when there is the slightest chance that he is a terrorist. But the aggregate outcome of these individual judicial decisions will be a massive lock-up for extended periods.
Perhaps the risk of another attack might justify such a brutal breach of the rule of law - though the government hasn't yet made a compelling case that this is so. But one thing should be clear: detainees should be amply compensated when they turn out to be innocent.
In part, this is a matter of simple justice. When the state calls upon somebody to sacrifice his property for the public good, it regularly pays a quid pro quo. Similarly, the European Convention on Human Rights guarantees compensation to anyone who has been unlawfully arrested or detained. A British statute allows the 28-day detention, and so escapes the express terms of the Convention. But these detainees have been denied the traditional safeguards that force the police to come forward quickly with evidence justifying the deprivation of liberty. This denial of due process makes the case for compensation stronger, not weaker, than normal.
But there is more than simple justice involved.
Fair compensation - say, £250 for every day in captivity - will create financial pressures for the authorities to complete their investigations expeditiously. As any student of economics appreciates, the price system can powerfully concentrate the bureaucratic mind - especially if the fees are charged to the budget of the police agency that has made the detention decision. This market-like pressure is especially crucial if the current 28-day deadline is transformed into a discretionary system supervised by judges.
Receiving a substantial payment will not compensate detainees for the daily outrage they experience on bitterly reflecting that they are innocent. Nor will it salve the agony of loved ones who anxiously fear that their relatives have been trapped in a Kafkaesque maze. But payment will help innocent people patch together their lives when they emerge from prison, and it will demonstrate to the minority community that the government does indeed recognize the sacrifices that are made in the on-going campaign against terrorism.
It took the United States Congress 40 years to apologise to Japanese Americans and Aleuts who had been shunted into detention centres during the second world war. As part of its statutory acknowledgment, Congress granted each detainee $20,000. This amounted to $3.36 per day if the recipient had been confined for two years, and had allowed the money to accumulate at 5% interest until Congress apologised. More recently, however, Congress has been far more generous. Under the Justice for All Act of 2004, a convict who is later found innocent may be compensated as much as $100,000 per year spent in prison. Yet these victims of injustice at least had the dignity of a fair trial in open court.
Suspected terrorist detainees are entitled to something comparable. Indeed, they don't suffer the stigma of being treated as "convicted felons"; they are called something worse: "suspected terrorists".
At present, it might be politically difficult to reduce the period of detention without trial. But isn't it wrong to force the innocent victims to bear all the cost?