Counter-terrorism judicial review as regulatory constitutionalism

As the other contributions in this volume attest, since 9/11 courts, inquiries, politics and independent reviewers have been working to try to maintain and enforce constitutionalist principles in the face of counter-terrorist powers. Experience has shown that politics has struggled to resolve the challenges these powers pose to constitutionalism – broadly understood here as a rule of law based commitment to limited, accountable and transparent power – so that courts have become central to resolving these tensions. In large part, courts have been asked to deal with counter-terrorist policies and laws directly imposed on litigants by respondent states, in relation to which some commentators have claimed courts are being less deferential than might have been expected. Adjacent to these kinds of cases, however, is the complex situation of the suspected terrorist with some kind of relational connection to one state who is either detained abroad by another state or by his own state, which intends to transfer him into the custody of another. These cases are truly acute; they bring into question not only the fine lines of rights protection and security activity, but also complex and vital questions of institutional competence heightened by the ‘foreign affairs’ context. Their acute nature allows for them to be an especially stern test for any claims that courts are in fact engaging in muscular counter-terrorism judicial review. Thus, in this chapter, I explore such cases across three jurisdictions in an attempt to explore what it is that courts are doing. Through an analysis of three cases from Canada, the United States and the United Kingdom, I argue that courts are quite carefully carving these kinds of cases into conceptual pieces (which I classify as internal and external questions) to engage in what I term ‘regulatory constitutionalism’. Here internal questions speak to the relationship between the suspected terrorist and the respondent state, whereas external questions concern the relationship between the respondent and third party states as it relates to the suspected terrorist. When dealing with internal questions, I argue courts are muscular notwithstanding the broader ‘external’ context in which they are considered, but when it comes to external questions a substantial amount of deference is apparent. This begs the question of whether such internal muscularity is worthwhile if external deference remains, however I argue that understanding counter-terrorism judicial review as a mechanism of regulatory constitutionalism provides at least some reassurance to constitutionalists.