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When United Kingdom Home Secretary Charles Clarke recently announced tough anti-terrorist measures aimed at militants who foment hatred and violence, and incite acts such as the London subway bombings, he particularly targeted for deportation firebrand Muslim clergy whose preaching stokes the fires of extremism. In doing so, he immediately raised human rights issues. His statement implicated freedom of speech and freedom of religion, strict detention plans raised due process questions and the United Nations special rapporteur on torture warned of the possible fate of those deportees who would be sent to countries with poor human rights records. Responding to criticism, Clarke commented: “The human rights of those people who were blown up on the tube in London on July 7 are, to be quite frank, more important than the human rights of the people who committed those acts.” Clarke’s remark, at first blush on the flippant side, has at its core a serious underpinning, with profound relevance to the ongoing debate in this country about the correct balance to be struck between restrictions aimed at prevention of terrorist acts, on the one hand, and recognized human rights on the other. A human rights analysis Certainly, the Universal Declaration of Human Rights of 1948, the constituent document of the whole human rights movement of the post-World War II era, addresses all of the issues arising from Clarke’s plans: It proclaims that “Everyone has the right to freedom of opinion and expression” (Art. 19); the right to “freedom of . . . religion” is enshrined (Art. 18); no fewer than seven “due process” articles guarantee against arbitrariness in legal process; and Art. 5 is unequivocal in its ban on “torture or cruel, inhuman or degrading treatment or punishment.” The seriousness of these provisions cannot be gainsaid, and their significance cannot be overstated; each, in its own way, speaks to the conditions that are basic elements in the fabric of a civilized society, and the deprivation of any of them is a diminution of the individual’s status as a human being. At the same time, though, the Universal Declaration articulates another human right, which is quite central to any meaningful discussion on the subject: “Everyone has the right to life, liberty and security of person.” (Art. 3). Although it does not formally enunciate a hierarchy of rights, or spell out any mechanism for resolving potential tensions between different rights, the fact that the right to live is the first of the specific rights listed in the document suggests a certain primacy. At the same time, a little reflection reveals that it is a right that is qualitatively different from all other rights adumbrated, in three ways that are absolutely fundamental. First, to state the obvious, once a person is deprived of the right to live, it can never be restored. By contrast, if a person is wrongly and unjustly imprisoned, there is a simple remedy: Release him or her, and restore the right that has been taken away. Second, the victim who is deprived of the right to live can never be compensated. Against that, compensation of the victim of any other abuse is always open. And third, alone among human rights, loss of the right to live ipso facto carries with it the loss of every single other right. Put another way, on Sept. 11, 2001, about 3,000 people had all their human rights peremptorily and brutally wrenched from them; and more than 50 more suffered the same fate on the London transport system last July. If, in the context of measures aimed at preventing repetitions, strains are placed on individual rights, the unique character of the right to live suggests an a priori rationale for erring on the side of caution. To do so is not, in any sense, to trivialize other human rights. It is rather to underscore the ultimate nature of the right to live. In a real sense, this is no more than the natural extension of an argument advanced in favor of abolition of the death penalty-its sheer, remorseless finality; there is no margin for error. To say that, though, is in no sense to give governments carte blanche for wholesale trampling on human rights. The inquiry, in each situation, begins with a presumption in favor of the right to live, but it does not end there. It requires that each proposed derogation from any human right-be it freedom of speech, freedom of religion, the right to due process or anything else-be scrutinized to determine whether, in light of the presumption, the derogation is reasonably necessary to achieve the legitimate object. As long as a mechanism is in place for that to happen-in the United States and Britain in the form of an independent judiciary-the correct balance between imposing restrictions to prevent terrorism and respecting recognized human rights is capable of being achieved. In introducing his anti-terror measures, Clarke therefore summarized accurately, when he spoke of the importance of “look[ing] at human rights in the round.” Harry Reicher, an NLJ columnist, teaches international human rights at the University of Pennsylvania Law School.

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