Chapter 9. Black Holes, White Holes and Worm Holes: Pre‑emptive Detention in the ‘War on Terror’

This chapter explores the use of detention as a response to terrorism in the United States (US), United Kingdom (UK) and Australia. I have chosen to focus on these three countries because it is clear that Australia has taken some leads from the US and UK in this area as a result of its close connections with them. The three countries have obvious cultural connections and they were all members of the ‘coalition of the willing’ that invaded Iraq in 2003. It is apparent that detention has become a favoured preventative measure in the ‘fight against terror’ in all three countries, and that the rules that would generally govern and constrain detention have altered dramatically. Indeed, the rules are so different, subject to so many ongoing changes, and based on such flimsy rationales that they lack legitimacy.

In this chapter, I also comment on the relationship between detention and torture. Places of detention are often places of torture, which is one reason for human rights safeguards surrounding detention such as the right to come before a judge. The interrogation techniques used by the US in Guantánamo Bay have been denounced as torture by international non-government organisations, as well as bodies within the United Nations human rights system.^[1] Meanwhile, the UK has sought to deport people whom it would otherwise wish to keep in detention on the basis of ‘diplomatic assurances’ that torture will not occur once the person is returned to their home country, assurances that should carry little, if any, weight.

Various argumentative strategies used by governments to support the use of detention and to circumvent the prohibition on torture, the flaws in these strategies, and possible long-term ramifications for core human rights norms such as the prohibitions on arbitrary detention and against torture are examined. I will focus on two principal arguments put by governments, which are sometimes interrelated. One is to deny that a person is truly a person entitled to all human rights — for example, by attempting to differentiate between aliens and citizens, or lawful and unlawful combatants. The other is to put the person in a legal ‘black hole’, to use Lord Steyn’s terminology,^[2] whether by removing the person from a state’s territory, or creating executive‑controlled detention — for example, by depriving courts of jurisdiction. A third argument will also be noted along the way. This is the ‘balancing’ argument, namely that human rights need to be balanced against national security, which is another route to the same result — denial of a person’s rights as a fellow human being, or a justification for putting them into a legal black hole.

A common theme underlying these arguments is that there exists an emergency that permits extraordinary measures. The emergency may be characterised as a ‘war’, or a ‘threat to the life of the nation’, which justifies derogation from rights,^[3] or a situation in which the executive is able to limit rights without invoking the need to derogate from rights. As the title of the chapter suggests, the argumentative strategies employed by the governments concerned are as dangerous as space travel, and as improbable as some science fiction.