Administrative detentions : balancing civil rights and national security
University of British Columbia
Master of Laws - LLM
In response to the threat of modern terrorism, democratic governments take steps which curtail civil rights, ostensibly to protect national security. Administrative detention is one of the more commonly taken steps. This paper traces the history of civil liberties and administrative detention in Britain, Canada, the United States, and Israel and examines why democracies deem the continued use of this tool necessary in dealing with perceived national security threats. The advantage of the perspective gained from historical distance, and ways in which democracies might learn from each other's experiences will be explored. The first chapter will examine eras in which administrative detentions have been used, reasons they were deemed necessary, whom they were used against, and the procedures employed in imposing them. This reflection provides insight into what constitutes a true crisis in the life of a democracy, and when it has been considered appropriate to take extraordinary steps to curtail civil liberties in order to protect a nation's democratic way of life. The second chapter will survey the legal tools used to combat terrorism by the United States following the attacks of September 11, 2001, as these pertain to detention of immigrants, and to the relevant provisions in the Patriot Act. The detention of non-citizens as well as American citizens detained and classified as enemy combatants, raises profoundly important issues central to the meaning of life under constitutional government. The third chapter will highlight Israel, a unique democracy which has grappled with terrorism from its very inception. The manner in which Israel has used administrative detentions provides valuable lessons regarding methods which work, and methods which should not be sanctioned. The fourth chapter will address the use of security certificates in Canada. Although Canada's recent Supreme Court ruling that security certificates are unconstitutional should be lauded, solutions to the issues raised in balancing individual rights to procedural fairness and fundamental justice, against public safety, remain largely unexplored. Practical methods used by other Western democracies in order to reach a "middle ground" which would afford the detainee an appropriate measure of due process, while preserving national security, will be discussed.
Law, Peter A. Allard School of