On March 17, the Bregate Rosse (Red Brigades), an Italian version (and probably an affiliate) of the German Baader-Meinhof gang, kidnapped Aldo Moro, five times Premier of Italy, and in cold blood murdered his five guards. Their immediate purpose was to extort the release of some fifteen of their fellow terrorists, who are on trial in Turin for an assortment of assassinations, kidnappings, bombings, and similar acts of vicious mischief. That trial, which the court has been attempting to conduct like an ordinary criminal case, has been bogged down for months, largely as a result of the intimidation of prospective jurors and defense counsel. (The accused want no counsel, preferring to defend themselves by disrupting the proceedings.) What the ultimate goals of the Red Brigades may be, other than an attempt to destroy Italy’s existing polity (allegedly in the interest of a “proletariat” to which they do not belong and which has no use for them), is completely obscure, for in the taxonomy of terrorism they belong to the psychopathic variety. The other principal species, which may be termed the “politicals,” exemplified by groups like the Irish Republican Army (IRA) and Al Fatah, is just as brutal but has more or less comprehensible political objectives.
The Italian government has already reacted with some emergency decrees. There will be mandatory life sentences for kidnappers who kill their victim and thirty years for others. The police and magistrates have been given power to order wiretaps without written authority, to question suspects without the presence of a lawyer, and to hold them for investigation for an extended period. The army has been called in. But I think it probable that other, more drastic, measures may be needed.
The Italian crisis presents in acute and dramatic form a fundamental problem: what legal measures can and should be taken to control terrorism when it becomes too much for the ordinary agencies and procedures of law enforcement? A goal of many terrorists is to provoke oppressive countermeasures, to deprive the government of popular support by turning it into a police state. The dilemma was best stated by Abraham Lincoln in 1864: “It has long been a grave question whether any government, not too strong for the liberties of its people, can be strong enough to maintain its existence in great emergencies.” Lincoln’s question is, of course, relevant only in democratic countries whose constitutions or traditions give the citizen a substantial measure of liberty, such as freedom of speech and the right not to be imprisoned or executed without due process of law. Political violence (unless committed or authorized by the state itself) seems hardly to exist in Russia or China, or any other despotism with an efficient and ruthless secret police, having nearly unlimited power to arrest, search, imprison, torture, and execute dissenters, real or suspected. But for such countries as the United States, Great Britain, Israel, Italy, and West Germany, there can be no more difficult problem than to decide how far the normal freedom of the citizen can be abridged in order to prevent the destruction of the lives and property of innocent people.
The United States does not at present have a terrorist problem so serious that it cannot be handled by the usual process of law enforcement. True, the FALN, the extremist faction of the Puerto Rican nationalist movement, has been responsible for a number of bombings and murders disproportionate to its minuscule membership, but the Weathermen seem to be extinct or moribund, and the Ku Klux Klan and neo-Nazis appear generally willing to content themselves with verbal violence. (But Reies Tijerina’s Alianza Federal de Mercedes, which asserted the right of Mexican-Americans to rule large areas of the Southwest and which was far from nonviolent, is an example of a group with a grievance that could, with a little bit of bad luck, have become a formidable terrorist force.)
Although the Federal Republic of Germany has had enormous trouble with the Baader-Meinhof gang and its friends, it, too, has taken only such relatively moderate measures as making it illegal to be a member of a terrorist organization and controlling the physical contacts between imprisoned terrorists and their radical lawyers, who were strongly, and probably justly, suspected of acting as couriers between their clients and others still at large, and also of smuggling guns and other contraband into the prison.
On the other hand, the United Kingdom, the oldest and one of the most stable of the world’s democracies, has been struggling for nearly a decade with a campaign of terrorism, amounting almost to an armed insurrection, in Northern Ireland (sometimes spilling over into England itself), which has so far cost more than 1,800 lives, mostly of innocent people, a corresponding amount of maiming and mutilation, and untold destruction of property—and all this in an area whose population does not much exceed a million and a half. In what follows, I propose to examine the legal measures which the British government has taken to control the IRA and its Protestant analogues, and to ask whether the British experience has any lessons for the United States, should we ever have to deal with similar violence.
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One-third of the people in Northern Ireland are Catholic and Celtic, the remainder almost entirely Protestant, descendants of settlers from England and Scotland. The animosity between the two communities is more than three centuries old, rancorous, and often (at least to the outsider) irrational. An American or even an Englishman may find it difficult to tell the two groups apart, but they seem to be able to identify each other at a glance. They generally live apart, in urban and rural areas that are solidly Catholic or Protestant.
Although at the start of the troubles in 1969 the province had on paper a democracy on the British model, in reality Ulster was a one-party state, in which the Unionist (Protestant) party invariably controlled the Parliament and the executive branch. The Catholics inevitably suffered from discrimination in employment, housing, and public services. They never had a chance to redress their grievances by turning the Unionists out of office. Unlike American blacks, they could not exercise electoral clout as a swing vote, for the Unionists were the only important Protestant party.
In the United States, the obvious alternative to violence in such circumstances would have been resort to litigation to enforce the minority’s constitutional rights. In fact, although Northern Ireland differed from England in that it lacked a two-party system, it differed also in that it had what amounted to a constitution. The British Parliament’s Government of Ireland Act of 1920, which created the government of Northern Ireland (commonly known as the “Stormont” government from its seat in Stormont Castle), contained a rudimentary bill of rights, which, inter alia, prohibited discrimination on the basis of religious belief and gave the courts (including the British House of Lords) power to invalidate any act of the Stormont Parliament which contravened those provisions. As in the United States, discriminatory action by the executive could have been voided either by a holding that there was no statutory authority for it or, if the statute was too explicit for such a construction, that it was repugnant to the Government of Ireland Act. Northern Ireland was in these respects fundamentally similar to an American state.
But the Catholics never made any serious effort to seek a judicial remedy. Although the IRA and its political branch, Sinn Fein, never had any interest in a peaceful solution, it remains something of a mystery to an American why others did not attempt to obtain legal redress from the courts. Perhaps the holding of the Supreme Court of the United States in Marbury v. Madison, that a law repugnant to the Constitution is void, is an exotic plant which did not take root in British (or Irish) legal soil. Or perhaps the Catholic failure to go to the courts was simply due to a lack of money or to a general distrust of the Unionist-appointed judges, although some of them were Catholic and most of them—certainly the House of Lords—appear to have been unbiased.
But whatever the reasons, in the absence of judicial intervention, the grievances of the Catholic third of the population continued. As a result, the gunmen and bombers of the IRA had the support, at least passive and sometimes active, of most of the province’s Catholics. Moreover, like some other terrorist organizations, they got money and munitions from outside—not from the Republic of Ireland, which never backed and often jailed them, but from Irish-Americans. In fact, one reason for the current decline in the fortunes of the IRA may be the courageous stand taken against them by such important American politicians as Senators Kennedy and Moynihan, House Speaker O’Neill, and Governor Carey.
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In 1969, the IRA launched its campaign of terror, directed principally at the government and its Protestant supporters, but also against Catholics who favored a nonviolent solution. (To cite but one example among many, a prominent Catholic judge, Rory Conaghan, was murdered by the IRA, probably for the precise reason that he was trusted by the Catholics.) The violence was shortly augmented by the Ulster Freedom Fighters and other paramilitary Protestant organizations and complicated by occasional internecine strife within each of the two groups. The weapons employed were principally guns, bombs, Molotov cocktails, and even rockets. None of the terrorists was squeamish about indiscriminate death and destruction, such as planting bombs in department stores, hotels, and movie theaters, both in Northern Ireland itself and in England. The IRA, for example, killed several tourists in the Tower of London and twenty-one teenagers (plus many more seriously injured) with satchel charges planted in a couple of crowded Birmingham pubs. On February 17, 1978, the IRA proved that is was still alive by murdering a dozen people in the bombing of a restaurant near Belfast. In response to such violence, the British government sent troops into Northern Ireland in 1969, and assumed direct control over the province early in 1972.
The difficulties posed for the security forces (the local police and the British army), the prosecutors, and the courts were enormous. Ordinary powers of arrest, search, and seizure proved inadequate. For example, the law required that a police constable or soldier making an arrest, when there was no time to obtain a warrant, inform the suspect of the ground for the arrest and also of the precise legal authority for it. That was not easy for a young soldier who was not likely to be versed in criminal law, especially when the arrest took place in a sectarian stronghold, under a hail of rocks and bottles or even sniper fire. If a bomb or gun was found in a dwelling or vehicle occupied by two or more people, it was often impossible to prove beyond a reasonable doubt that any one of the occupants knew it was there. (In one case, when a revolver and ammunition were found in a bureau drawer in a room used by three brothers, an appellate court reversed the conviction of all three, on the ground that the evidence did not support a finding that it was in the possession of any particular one of the brothers, let alone all three.)
But the most difficult problem of all was that witnesses and jurors, even if they were not biased, were in thoroughly justified fear for their own lives and those of their families. Some witnesses brave enough to testify were murdered before they could take the stand, and it was generally impossible to give adequate protection, especially if (as was usually the case) witnesses lived in Catholic or Protestant ghettos. In fact, the only cases in which there was any hope of conviction were those in which the defendants had been arrested in flagrante delicto, so that the principal witnesses were members of the security forces, or where there was solid circumstantial evidence, like fingerprints or ballistic tests. Even in such cases, however, the jurors could not be trusted to bring in an honest verdict.
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How could the British government cope with such a crisis of law enforcement? We may put aside for the moment constitutional problems, for England has no written constitution and no bill of rights. What Daniel Webster said in 1819 is still broadly true: “The British Parliament has that sovereign power, called omnipotent, which does not belong to any legislature in the United States.” In effect this means that Her Majesty’s Government can curtail the liberties of its subjects to whatever extent it thinks necessary and politically feasible. In considering extraordinary measures, the government is constrained only by tradition, its own moderation, and a reluctance to take action so drastic that public opinion would not tolerate it. Thus, in their efforts to restore order in Northern Ireland, the British could employ a wide variety of emergency procedures. What were they, how did the British make use of them, and to what effect?
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Full-fledged martial law: complete delegation of authority to the military, including the power to try civilians by courts-martial or military commissions (a type of military tribunal that may have much looser rules of procedure and evidence than courts-martial). This was never seriously considered. Although martial law had often been invoked in the colonies and in Ireland in the last century and the first two decades of the present one, England has not known rule by the redcoats since Cromwell’s time.
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Internment: locking up suspected terrorists without trial for an indefinite period. At 4:30 A.M. on August 1, 1971, British soldiers, acting under the authority of the Stormont Special Powers Act of 1922, arrested 342 suspects and added another 648 by November. More than half were released within a few weeks or months. Since release meant not merely that there was insufficient evidence to support a criminal charge, but that the authorities were satisfied that the person arrested was probably not a terrorist, it may be suspected that they relied on information which was out-of-date or simply wrong.
The practice of internment continued for several years, at first under a British Order in Council after the takeover in 1972, and thereafter under the British Parliament’s Northern Ireland (Emergency Provisions) Act of 1973, applicable only in Ulster. The population of the Maze Prison during this period ranged from 535 to 669. Since there were provisions for thorough administrative review of each case by experienced lawyers, it seems probable that most of those interned were genuine terrorists.
What effect internment had is hard to say, although it seemed intrinsically likely to a Royal Commission, which filed a report on the working of the Emergency Provisions Act in early 1975, that the removal from circulation of several hundred potential gunmen and bombers did prevent a good deal of violence. Yet by the end of 1975, the British concluded that the unpopularity of the program among the Catholics (and also among the Protestants, when their militants began to join the Catholics in the Maze), combined with the fact that other measures were showing results, outweighed whatever good it did. The practice of internment, or “detention,” as the British preferred to call it, was thus ended in late 1975; the release of detainees did not in fact produce a dramatic increase in bombings and murders.
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Interrogation in depth. This is a euphemism for the third degree, applied not so much to obtain confessions which could be used in court as to extract intelligence on the IRA and its plans. A Royal Commission, headed by Sir Edward Compton, found that, after the initial roundup of 1971, the security forces had resorted in a “small number” of cases to “wall-standing” (requiring suspects to stand with their hands against a wall for periods of several hours), “hooding” (covering suspects’ heads with black pillowcases), continuous loud noise in the cells, and bread-and-water diets. The Compton Commission concluded that these rough techniques did, in fact, produce some useful information, which probably forestalled some acts of violence. Still another Royal Commission, the Parker Committee, grappled unsuccessfully with the morality of harsh treatment of suspected terrorists (though such methods as the British did employ would have been regarded by the KGB as practically coddling) in order to save innocent lives. Lord Parker and one of his two colleagues thought that the idea that a civilized society should never use such techniques as wall-standing in order to save innocent lives was “unrealistic . . . and unfair both to the state and to law-abiding citizens.”
But whatever the moral justification for “interrogation in depth,” there was no legal authority for it; it amounted to criminal assault. (Most of the victims recovered substantial damages from the Crown.) The practices were abandoned before the first report was published, and there is no credible evidence that they have been used since 1971.
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Arrest and search. The 1973 Act permits a soldier on duty to arrest and detain, for a period of up to four hours, anyone whom he suspects of having committed, or of being about to commit, an offense; this may be done without a warrant or any explanation more complicated than that he is “effecting the arrest as a member of Her Majesty’s forces.” This has made life somewhat easier for the troops and has not generated much controversy. Similarly, the Act allows warrantless search for and seizure of arms, ammunition, and explosives by both police and soldiers, and permits them to stop and question for the purpose of establishing identity, even when there is no particular reason to believe that the person stopped is a terrorist.
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New crimes. The 1973 Act, like its predecessor, the 1922 Stormont Special Powers Act, makes it a crime, punishable by five years’ imprisonment, to be a member of a “proscribed organization,” meaning one which the Minister for Northern Ireland has found advocates the use of violence. Essentially, the crime of “membership” was aimed at the command and staff of the IRA and similar Protestant groups. It is easier to prove than the old crime of conspiracy.
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Relaxation of the rules of procedure and evidence in criminal trials. One way to lessen the need for internment is to make it easier to convict terrorists in court with something like due process of law. The 1973 Act created “Diplock courts” (after the Royal Commission headed by Lord Diplock on whose recommendations the Act was based) which can try “scheduled offenses” without a jury when the Director of Public Prosecutions finds that a fair trial probably could not be had in the ordinary way. This disposed of the problem of biased or intimidated jurors (the judges are easier to protect) but did not remove the difficulty of producing evidence sufficient to convict. Therefore, the proof of one of the commonest terrorist offenses, unlawful possession of arms and explosives, was simplified: when such contraband was found in premises or vehicles occupied by two or more people, each of them was to be deemed guilty unless he could satisfy the court that he neither knew nor had reason to suspect that the contraband was there. This, of course, was a radical departure from the usual rule that the prosecution has the burden of proving all the elements of an offense beyond a reasonable doubt.
The Diplock Commission also recommended substantial modification of the “Judges Rules,” something like the rules laid down by the U.S. Supreme Court in Miranda v. Arizona, which strictly limit the admissibility of self-incriminating statements made in police custody. The Act allows such a statemnt to be given in evidence “unless it is proved by a balance of probabilities that it was obtained by subjecting the accused to torture or to inhuman or degrading treatment.” Confessions obtained by threat of torture, and evidence obtained from others by such methods, were not mentioned. Not only did this section arouse the wrath of civil libertarians, it seems to have served no useful purpose. To the best of my knowledge, no terrorist has been convicted on the strength of his own admissions.
Another, much less controversial, change in the rules of evidence relaxed the limitation on hearsay evidence by permitting the introduction of depositions made by witnesses who, before the trial, had died or vanished. This change was based on a case in which a witness had been murdered after making such a deposition, but it too seems not to have been used.
In general, however, Diplock courts have proved effective. In three years, the number of convictions for terrorist crimes tripled, and the number of bombings, shootings, and deaths declined by about a third. Obviously, other factors, such as the increasing experience and efficiency of the security forces, may have contributed to the improvement; but there is little doubt that Diplock courts have done what they were intended to do, and made possible the end of internment.
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Severe punishments, including death. The penal laws of Northern Ireland authorized long terms of imprisonment, up to life, for serious terrorist offenses, and death for “capital murder,” although no terrorist had actually been executed. In England the death penalty was abolished years ago, and the very first section of the 1973 Emergency Provisions Act provided that no one should suffer death for murder. Here, however, the members of Parliament clearly differed from their constituents; a Harris poll in 1975 showed that almost 90 per cent of the British public believed that hanging has a salutary effect on terrorist murderers and ought to be given a try. I am of the opinion that on this issue the politicians were wrong and the people right. The arguments for and against capital punishment for ordinary murders are not wholly in point, for terrorists are not ordinary murderers. For one thing, imprisonment is a less effective deterrent for them than for common criminals. Most of them firmly believe that their cause must triumph and that they will be freed the moment it does, or that they will be returned to action as soon as their friends can extort their release by kidnapping hostages or hijacking an airplane. Thus, execution is the only way to make certain that that terrorist will not kill again. I would not argue that death ought to be mandatory for every terrorist murderer, only that it ought to be available when the circumstances call for it. Arguments based on compassion for the criminal are not appealing when they are applied to the “hard men” of the IRA and their ilk in other countries.
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Censorship. The Stormont Special Powers Act of 1922, which was superseded by the British legislation of 1973, gave the government broad powers to censor, and even close down, publications which it thought were spreading disaffection and disloyalty. No such powers were granted by the 1973 Act. Still another Royal Commission, chaired by Lord Gardiner, whose task was to see how that Act had worked and to consider whether amendments were needed, made its report in 1975. It considered complaints (common to all countries suffering from the depredations of terrorists) about the media treatment of terrorism, and censured the press and television for giving the terrorists’ propaganda excessive space and for sensational reporting which gave them a “spurious glamor.” The Commission confined itself, however, to exhortation, concluding that “there can be no question of introducing censorship into a free society in time of peace.” The presumption against limiting freedom of speech and the press is of the strongest, and, at least in Northern Ireland, there were no circumstances sufficient to overcome it. (But restriction on the dissemination of manuals on guerrilla tactics and the construction of bombs, if it is “censorship” at all, seems justified.)
In addition to all of the above, the British have also imposed other, less drastic, restrictions on normal freedom, such as temporary curfews and the regulation or prohibition of demonstrations and parades likely to lead to breach of the peace and riot. There are as well statutes applicable in England itself, such as the Prevention of Terrorism (Temporary Provisions) Act of 1974, which not only makes it an offense to be a member of a “proscribed organization” (a category which includes only the IRA), but authorizes the arrest and deportation (but not the internment) of such persons if they are not citizens or residents of England. Only a dozen or so deportation orders have been issued under it.
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Along with this summary of the principal emergency measures available to the British and how they employed them, there is another question which must be discussed in connection with British actions in Northern Ireland: the problem of the abuse of power. The grant of broad emergency powers necessarily creates the danger that they will be abused, as they were in 1971. This is a job for the judges, and on the whole the judges of Northern Ireland did grant relief when the victims went to court. But the courts played a much smaller part than American courts would have played. The House of Lords cannot hold an Act of Parliament unconstitutional, and no British judge since Coke has claimed the power to strike down an Act of Parliament because it violated the common law. But, like American courts, their lordships, when so inclined, can find ways to hold that Parliament has not authorized what the government is doing—i.e., that its action is “ultra vires” (beyond the powers conferred), either because the emergency in which the statute permits those powers to be used does not in fact exist, or, if there is an emergency, that the government’s action goes beyond what is necessary to deal with it. In practice, however, this has rarely been done. The House of Lords held that the Stormont government had not exceeded its powers under the old Special Powers Act when it added “republican clubs” to the list of proscribed organizations, regardless of whether there was any evidence that a particular club advocated violence—although two of the five judges entered strong dissents. (Since the takeover, the British have banned only notoriously violent organizations like the IRA and the Ulster Freedom Fighters.)
But abuse of power can occur at a level lower than that of the government—in connection with the authority given to the police and especially to the army to shoot to kill. The Ministry of Defense has issued to every soldier serving in Ulster a “Yellow Card” containing rather complex instructions on the circumstances in which lethal force can be used. In essence, the troops are empowered to shoot to kill only when necessary to prevent death or serious bodily injury to themselves or to people whom it is their duty to protect. They cannot shoot to kill to effect arrests, to prevent less serious acts of violence, or to protect property.
These limits are stricter than those the law imposes; the common law, both in England and America, is that troops can use as much force as is necessary to carry out their duties, including the making of a lawful arrest for any kind of felony. Thus, a soldier whose use of his rifle is not authorized by the Yellow Card would be guilty of the military offense of disobeying orders but might nonetheless have a defense against charges of murder, manslaughter, or assault. But even when such incidents are thoroughly investigated and prosecuted (which has often not been the case), they present formidable difficulties of proof.
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The problem is best stated by describing a typical case. A corporal, leading a seven-man patrol in a Catholic neighborhood after midnight, fired a shot up an unlighted street which killed a twelve-year-old boy at the end of the street. These were the only undisputed facts; there was no circumstantial evidence one way or the other. The corporal’s defense was that he acted to protect himself and his men. All the soldiers swore that immediately before he fired, a shot had come from the place where the boy was standing. All the civilian witnesses swore that there was no such shot and that the boy had no weapon. No gun was found, but it might have been taken away before the troops reached the spot. In Ulster, it is far from incredible that a child of twelve would have a gun and use it on British soldiers. A court-martial or a Protestant jury would have acquitted immediately, a Catholic jury would have convicted just as promptly.
This case, like other such cases, was tried by a Diplock court, without a jury. The trial judge found that while some of the civilian witnesses were probably lying, others were more credible than the soldiers. But the court of criminal appeal quashed the conviction, essentially on the ground that in a case “so finely balanced,” the evidence did not prove manslaughter beyond a reasonable doubt. The acquittal, like that in a second similar case, was seen by the Catholics as a miscarriage of justice, just as conviction would have outraged the army and the Protestants. I do not myself know the answer to the problem of punishing members of the security forces who commit excesses, for bias is inevitably strong where terrorism is concerned. About all that can be said is that an experienced civilian judge is more likely to do justice than a jury or a court-martial.
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What I have described thus far is one democracy’s reaction to organized terrorism and some of the problems this reaction has provoked. Were the results worth the considerable derogations of civil freedom? I think the answer must be yes. As noted above, the number of shootings and bombings dropped very substantially after passage of the Emergency Provisions Act. The annual number of deaths declined from 482 in 1972, the worst year, to 296 in 1976, and 111 as of December 21, 1977, the lowest since the troubles began. Some part of the improvement is no doubt due to the fact that both Catholics and Protestants are growing sick of their own militants (and more willing to inform on them), but there is little doubt that the government’s legal measures helped greatly.
Obviously, not all these measures would be appropriate for every kind of terrorism. For example, where terrorists have no popular support, the problem of biased witnesses and jurors is not so great, or it takes the form of a danger of unjust conviction. (Intimidation, however, is always a problem.) Radical defense lawyers have not presented the dilemma in Northern Ireland that they have in the Federal Republic of Germany. Extraordinary measures to deal with terrorism must, of course, always be tailored to the particular situation.
Which brings me to the last question: which of the British government’s emergency measures could and should be taken if there were a similar crisis in the United States? Would they be constitutional? On many occasions in our history, state and federal governments have resorted to military force to control domestic violence, most recently during the urban riots of the late 60’s. Governors and sometimes Presidents have drastically curtailed civil liberties, with and without legislative authority. Our closest approach to a situation like the one in Ulster was that which existed during the Civil War in areas like Southern Illinois and Indiana, where Copperheads were numerous, active, and likely to be on any jury. Lincoln and Stanton resorted to internment (i.e., confinement in military prisons without charges or trial) and trial by military commissions. (The last and most famous of such trials was that in which several of those who had conspired to assassinate Lincoln were sentenced to death.) Lincoln suspended the writ of habeas corpus in the cases of persons detained by military authority, at first as an exercise of his own constitutional power and after 1863 with the authority of Congress. The most drastic and least justified abrogation of civil rights in our history was the World War II deportation and internment of Japanese-Americans living on the West Coast, under an executive order of President Roosevelt which was shortly ratified by an Act of Congress.
The salient difference between American and British law is, of course, our Constitution, and the doctrine that a law repugnant to the Constitution (i.e., to a majority of the Supreme Court) is void. The Constitution empowers Congress “to provide for calling forth the Militia [today better known as the National Guard] to execute the Laws of the Union, suppress Insurrections, and repel Invasions”; the President “shall take Care that the Laws be faithfully executed,” which may sometimes require the use of regulars, as well as the National Guard, as in Little Rock in 1957. “The United States shall guarantee to every State in the Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.” But “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public Safety may require it.”
The Bill of Rights guarantees, inter alia, freedom of speech, the press, and association; freedom from unreasonable search and seizure; the right to grand-jury indictment and jury trial for serious offenses; the right not to be compelled to incriminate oneself and not to be deprived of life, liberty, or property without “due process of law,” including the assistance of counsel. The Fourteenth Amendment adds, “nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court has in recent decades held that the Fourteenth Amendment incorporates, and makes applicable to action by state governments, most of the Bill of Rights.
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Undoubtedly the British remedies for terrorism—in particular internment, juryless trials, relaxation of the rules of evidence and burden of proof, making a crime of membership in particular associations—would raise the gravest constitutional issues. Those issues could not be taken away from the courts by suspending the writ of habeas corpus, unless violence rose to such a level that it could be called a “rebellion.” It is true that under the Constitution, the Supreme Court has jurisdiction “with such Exceptions and under such Regulations as the Congress shall make.” Once, shortly after the Civil War, Congress actually did deprive the Court of jurisdiction to review convictions by the military courts which were trying civilians in the states of the late Confederacy, and the Court thought it prudent to acquiesce. But things would have to be very bad indeed before Congress would consider provoking so great a constitutional crisis.
The fact is, however, that the Court has never treated the commands and prohibitions of the Bill of Rights as categorical, and has usually been slow to invalidate the actions of the President in a real emergency, particularly when he has had the authority of Congress. It did not interfere with Lincoln during the Civil War. When the last army of the Confederacy surrendered, and Lincoln’s assassins had been hanged, a majority held in Ex parte Milligan that Congress (and a fortiori the President) could not authorize the trial of a civilian (Milligan was a Copperhead who had been plotting a pro-Confederate insurrection in Indiana and Illinois) by a military court, so long as the civil courts were “open.” But in 1942, in a case called Ex parte Quirin, the Court upheld Roosevelt’s order that eight Nazi saboteurs (all of them civilians and one an American citizen) be tried by a military commission, although the civilian courts were of course open. The Court similarly upheld the deportation and internment of Japanese-Americans.
Congress has armed the President with the broadest imaginable power to do what he thinks necessary, including using the armed forces, in domestic crises. The most sweeping of these statutes, based on the so-called Ku Klux Klan Act of 1871, empowers him “by using the militia or the armed forces, or both, or by any other means, [to] take such measures as he considers necessary to suppress, in a state, any insurrection, domestic violence, unlawful combination, or conspiracy” if it so hinders the execution of law that people are being deprived of their legal and constitutional rights (as by being murdered) and the state authorities are unable or unwilling to enforce the law. If that statute, including the words “or by any other means,” is constitutional, it would seem to authorize every step taken by the British in Northern Ireland, and maybe more. In fact, although Presidents have used it fairly frequently, they have not gone beyond sending in the troops to control riots, in effect as auxiliary police. It has never been tested in the courts, and its extreme reach is still unknown.
Internment is probably constitutional if the Court finds that there is a real emergency and that it is not feasible to lock up terrorists by the ordinary criminal process. A famous opinion by Justice Holmes upheld the power of a state governor to intern without trial a man suspected of organizing large-scale violence. The two leading holdings that civilians cannot be tried by military courts when the civilian courts are open (Milligan and Duncan v. Kahanamoku, the latter a decision by Justice Black immediately after World War II) emphasized that they did not affect what Black called “the power of the military simply to arrest and detain civilians interfering with a necessary military function at a time of turbulence and danger from insurrection or war.”
It will be noted that all of these cases involved military action of one sort or another. Although neither the United States nor any state has ever tried anything like Diplock courts, they might be constitutional. They are not military and therefore may not be within the strictures of the Milligan and Duncan decisions, and a federal judge, though sitting without a jury and without some of the more restrictive rules of evidence, seems to represent less of a departure from normal due process than does a military commission.
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But this does not mean that the discretion of the President and Congress, or of a state governor and legislature, in what they claim is an emergency, is unfettered. If that were so, constitutional protections would mean no more than they do in Soviet Russia. State governors have often issued bogus proclamations of martial law when in truth there was no emergency requiring any unusual type of law enforcement. I can imagine Presidents who might do the same; we cannot count on a Lincoln in the White House whenever some sort of violence flares up.
In the last analysis, only the courts, especially the Supreme Court, can guard against abuses of discretion. They have several times done so when state governors went too far. Chief Justice Hughes, invalidating a particularly bogus declaration of martial law by the governor of Texas, said: “What are the allowable limits of military discretion, and whether they have been overstepped in a particular case, are judicial questions.” The principle seems quite as applicable to the question of civilian discretion. It means, in a nutshell, that the Court must be satisfied that there is an emergency, that it cannot be dealt with by the ordinary process of law enforcement, and that the derogations from normal rights are the minimum necessary to maintain law and order.
The Supreme Court has not been disposed to confine the other two branches of government when war or some other great crisis actually exists. I think that the Constitution (which, as Justice Jackson once observed, is not a suicide pact) would permit whatever was really necessary, but there must be limits, and if Congress and the President do not stay within them, only the Court can set them.
In this country, an oppressed minority has a better chance of curing the oppression by peaceful means than the Catholics had in Northern Ireland. But some people see as oppression laws which neither the majority of the people nor the courts would see in that light, and many terrorists love death and destruction for their own sake. I hope my speculations will remain academic, but there can be no certainty that they will. Meanwhile, there can be no harm, and there may be some good, in thinking about the problem. If we do, we are less likely to resort to panic measures in an actual emergency.
One of the Italian Communist party’s principal arguments for power is that they know how to deal with terrorists. And, indeed, I think it likely that the Red Brigades would not last a week under a Communist regime. The secret police would exterminate or incarcerate them, along with a lot of innocent dissenters. Fortunately, there are alternative methods.
