Professor Tushnet poses a question of central importance for all constitutional democracies that are founded on respect for the rule of law and the separation of powers between the executive, the legislature and the judiciary: how can such democracies control the exercise of emergency powers? ‘By law or through politics’, he responds, by way of a ‘general answer’,Footnote ² and it is that general answer that I shall briefly address in these comments.

Professor Tushnet’s central premise is that a clear distinction exists between ‘political’ and ‘legal’ controls. My sense is that the premise is flawed. At the very least, it is necessary to consider the interplay between ‘political’ and ‘legal’ controls, so that Professor Tushnet’s binary structure requires a more nuanced approach. This is based on recent experience in Britain, which indicates that political control mechanisms are often likely to be shaped by perceptions of what may be expected to happen in the courts. A political decision may be taken to adopt a political direction in order to avoid the embarrassment of being overruled by the courts. Equally, a political decision may be taken to allow a case to go to the courts in the belief that the ‘wrong’ decision would be blamed on the courts rather than the government. I am aware of one case in the recent past where there exists hard evidence of this having happened.

As prime minister, Tony Blair was reputed to have concerns about the law and the judges when it came to the balance between security and human rights. This is confirmed by the case of Youseff and others v. The Home Office, the material facts of which dated back to the spring and summer of 1999 and concerned the circumstances in which Britain could return Hani Youseff and three other Egyptians to their homeland. Youseff was a lawyer who represented Muslim groups and activists in cases brought by and against the Egyptian government. The then Home Secretary, Mr Straw, wanted to deny Youssef’s application for asylum on the grounds that he was a senior member of Egyptian Islamic Jihad, which had mounted terrorist acts and signed a document declaring that the killing of Americans and allies was the duty of every Muslim. The difficulty was the fear that Youseff would be persecuted if he returned to Egypt, coupled with the government’s policy that no one should be removed or deported to a country where there was a ‘real risk’ that the returnee or deportee would be treated in a manner that breached Article 3 of the European Convention on Human Rights (ECHR: ‘No one should be subjected to torture or to inhuman or degrading treatment or punishment’).

The way around the problem would be to obtain written assurances from the Egyptian government for the safety and wellbeing of Youseff. The foreign office (FCO) sought assurances on nine grounds, including no ill-treatment, access to an independent and impartial civilian court and various due process rights, no death penalty, and access to British government officials during any imprisonment or, failing that, telephone access to a UK based lawyer. Mr Blair took a very direct interest. On 1 April 1999 the private secretary at the Home Office wrote to his private secretary at 10 Downing Street, providing information on the initial reaction of the Egyptian government to the assurances requested. The prime minister read the letter. He wrote across the top of it: ‘Get them back’. And in respect of the list of assurances sought he wrote: ‘This is a bit much. Why do we need all these things?’

He need not have worried. The Egyptian government declined to give the assurances, on the grounds that they amounted to an unwarranted interference in the affairs of a sovereign state. Egypt was willing to offer some assurances, but not all. On 24 May 1999, the principal private secretary at the FCO wrote to the prime minister’s private secretary: Egypt had been offered some flexibility, but there was no scope for any more. In response to the FCO’s view that the Egyptian assurances were inadequate the prime minister wrote across the top of this letter: ‘This isn’t good enough. I don’t believe we shld [sic] be doing this. Speak to me.’ The disdain for human rights concerns is clear. By 3 June 1999, the Home Secretary had concluded that the limited Egyptian assurances were insufficient, that the men would face an Article 3 risk if they were returned, and that therefore they should be released and not returned. The prime minister was not well pleased. On 14 June 1999, his private secretary responded as follows, providing an interesting insight into the prime minister’s respect for the law, the extent of his commitment to the rules and the use of courts as part of a political game in which legal and political mechanisms interact:

The prime minister’s direct intervention indicated a high degree of personal involvement in the affairs of different government departments. It suggested also that the overriding objective was not to act consistently with applicable rules, or to ensure that fundamental human rights of individuals were protected, but to gauge and then embrace popular public opinion. This gave rise to a political strategy of shifting the blame for Youssef’s release away from government and onto the courts.

There is a further point that might be made. Professor Tushnet’s concept of ‘political’ control seems overly narrow, and perhaps too formalistic. It appears to focus exclusively on formal political controls, in the sense of institutions vested with public powers. In democracies other political forces come into play, most notably the media, which is an important variable in influencing ‘political’ control mechanisms, and possibly also ‘legal mechanisms’. In the British debate over the detention of terror suspects the media played a key role, and this became particularly apparent in relation to those detainees at Guantánamo who had British nationality. In the United States the mainstream media – television and print – gave relatively little critical attention to Guantánamo until the abuses at Abu Ghraib became public in the late spring of 2004. The situation in Britain was rather different. By early 2002 Guantánamo was the subject of extensive attention in the press, all the more so when it became known that there were a number of British nationals involved. At the heart of the issue was the question of the legality of their treatment, in particular whether it met minimum standards of international law under the Geneva Convention and other instruments that might be applicable.

Even as the US courts and the British government were silent, the English courts sprang into action. In the summer of 2002 a case was brought on behalf of Ferroz Abbassi, one of the detainees, challenging the failure of Britain’s foreign office to take adequate steps to protect Abbassi’s basic human rights. The argument faced a serious hurdle, since the English courts have generally declined to hear cases which touch on sensitive issues of foreign relations. These matters have traditionally been treated as a matter for the executive branch of government, and not for the courts. Abbassi also had to persuade the English courts that he had a right to force the British government to make diplomatic representations to the US. This argument was helped by some obscure foreign office rules, issued in 1988, that set out government policy on diplomatic representations for British citizens denied justice abroad.Footnote ⁴ In 1999 this policy was extended to cover situations where it was alleged that the state of detention was violating international law.Footnote ⁵

The case put the British government on the back foot, particularly in its relations with the media, which was starting to cover the story. By then British civil servants had made several visits to the British detainees but had not expressed any public views as to whether the US position on the Geneva Conventions and the treatment of detainees was consistent with international law. A case before the English courts would bring public attention and scrutiny to the UK’s stance. The British government defended the English court proceedings with the usual vigour and thoroughness. It succeeded in getting the case thrown out by the first instance court, on the grounds that the case would require the court to enter the ‘forbidden domain’ of foreign relations. But in July 2002 the Court of Appeal gave Abbassi’s lawyers permission to challenge the government’s inaction. It set a hearing date for September 2002. The case was fast-tracked. That fact, and the presence of Lord Phillips, the Master of the Rolls and the second most senior judge in the country, as presiding judge, reflected its importance. But the hurdles were considerable. It came as no surprise that the foreign office chose to mount a defence based on the argument that the US actions were simply not justiciable before the English courts. It would be wrong, they argued, for the courts of one country to express a view on the behaviour of another.

The Court of Appeal rejected the government’s defence, cautiously but robustly. It ruled that it was ‘free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights’.Footnote ⁶ On the merits of the case – was Ferroz Abbassi being treated properly in accordance with international legal standards? – the British government decided not to disclose to the court what its views were. In response to Abbassi’s claim that he was being arbitrarily detained, the government merely put before the Court of Appeal the arguments which were being made by the US: the detainees were enemy combatants who posed a serious threat to the United States, would be treated humanely and were being held in accordance with the laws and customs of war. The government’s silence spoke loudly.

The English Court of Appeal was not silent, however. It invoked the principle of habeas corpus and the fundamental principle of English law that every imprisonment must be treated as unlawful unless it can be justified. The Court relied on the famous dissenting words of Lord Atkin in a House of Lords judgment given during World War II:

The Court approached the case on the basis of human rights law, rather than humanitarian law. Relying on the 1966 Covenant, it ruled unanimously that Ferroz Abbassi was being detained arbitrarily in a ‘legal black hole’. This was in breach of fundamental human rights, and it contravened fundamental principles recognised in international law and in English and American law. It was the absence of legal remedy that really irked the Court, prompted by the British government’s tendentious argument that it could imagine some circumstances in which the indefinite detention of a person without charge might not be arbitrary. Pressed by Lord Justice Robert Carnwath to give a single example, counsel for the British government was unable to do so. The Court’s response?

The Court did not order the foreign office to make any particular representations to the United States. Since that would have an impact on the conduct of foreign policy at a delicate time, it was a matter for the government to decide what to do precisely, and how. But the judgment made clear that silence was not an option. The Court expressed the hope that its deep concern and anxiety would be drawn to the attention of the American courts.

The Court’s judgment added great authority to those who were relying on international law to challenge the conditions of the Guantánamo detainees. The idea that Guantánamo was a ‘legal black hole’ achieved great currency, including in Parliament and in the media. To a significant extent the judgement of the Court of Appeal has set the tone for British public opinion on the issue of Guantánamo.

These two cases – Youssef and Abbassi – indicate the interplay between ‘political’ and ‘legal’ controls, as well as the influence of mediatic factors. Professor Tushnet’s question is important, but its central premise needs to be fine-tuned. There are a range of factors which suggest that a general theory on the interplay of political and legal factors in controlling the exercise of emergency powers remains beyond reach. Even if possible within a single jurisdiction, which I doubt, a comparison of two or more jurisdictions would tend to undermine rather than confirm.