| Popis: |
This thesis explores the strategies of detention, control and removal that are pursued by the state when the prosecution, surveillance or release of a terrorist suspect are not viable options. The inquiry examines executive practices that have emerged in the legal system of England and Wales, and draws on the experiences of the United States of America in order to identify issues of relevance and concern. Analysis is conducted of the interwoven nexus of constitutional mechanisms that supervise and limit executive action. In accordance with principles of constitutionalism, four constitutional benchmarks are examined. It is suggested that counter-terrorism laws must be sufficiently certain in their scope and application; there should be the provision of both effective legislative and judicial oversight mechanisms; and the human rights doctrine of proportionality is required in order to ensure that the appropriate balance is struck in the dynamic between personal liberty and national security. These benchmarks are applied across the strategies of terrorist detention, control and removal. The investigation makes three overarching and original recommendations. Legislative codification is suggested across a number of areas. It is argued that enhanced legislative oversight mechanisms, in both emergency and non-emergency contexts, should be sought. In addition, ways to enhance the utility of the judicial oversight mechanism should be contemplated. A confluence of these mechanisms is required in order to achieve 'constitutional optimization'. Adherence to these principles will ensure that a terrorism emergency is subject to strict temporal limits and that exceptional terrorism-related powers do not perpetuate. |
