Indefinite Detention and Antiterrorism Laws: Balancing Security and Human Rights

This article does more than describe British and American anti-terrorism laws; it shows how those laws go through conflicted government branches and the bargains struck to create the anti-terrorism laws that exist today. Instead of taking these laws as given, this Article explains why they exist. More specifically, this article focuses on the path anti-terrorism legislation followed in the United States and the United Kingdom, with particular focus on each country’s ability (or lack thereof) to indefinitely detain suspected non-citizen terrorists. Both countries’ executives sought to have that power and both were limited by the legislatures and courts but in different ways. These differences show the human rights concerns both countries grappled with when enacting anti-terrorism legislation and how the two governments approached balancing those concerns. These anti-terrorism laws also show which government branches possessed the most power when creating the legislation, which branches dictated the terms of these laws, and which branches were forced to compromise. The different paths taken by the anti-terrorism legislation in both countries also show the different styles of the two governments. The branches of the United States government are more likely to openly defy each other, knowing that checks and balances will ensure that no branch dominates. In the United Kingdom, there is no strong tradition of checks and balances so informal bargaining and consulting among the branches is more common before legislation is proposed or amended. The United Kingdom’s Human Rights Act has, however, begun to change the culture and has caused more open opposition among the three branches