Edited by Martin Scheinin, Helle Krunke and Marina Aksenova
Chapter 9: The judiciary in times of terrorism and surveillance: a global perspective
AbstractMartin Scheinin, Professor of International Law and Human Rights. This chapter brings together the themes related to surveillance and counter-terrorism by discussing the experiences of the role of the judiciary in respect of counter-terrorism laws in various parts of the world and the expanding use of new surveillance technologies. The main contribution by the author is in a discussion of ‘the pull of deferentialism’ through a presentation and critique of five different forms of judicial deference encountered in the fields of counter-terrorism and surveillance. The five factors that may contribute to an unjustified degree of judicial deference are related to arguments based on national security, to the role of technology and technological expertise, to the secrecy surrounding both counter-terrorism and surveillance measures, to the argument of the primacy of political legitimacy and finally, in particular at international or regional courts, to the argument of national sovereignty. The author calls upon the judiciary to act as guardians of constitutionalism and human rights also in issues of terrorism and surveillance. With reference to recent European research on the law, ethics and efficiency of surveillance technologies, the author proposes that a rational and structured framework for proportionality assessments by the judiciary can be established through relying on multidisciplinary expertise, including technological expertise, and an effort towards the quantification of factors such as effectiveness and efficiency of technology, and of human rights intrusion. These are essential tools in countering the pull of deferentialism that threatens to erode the particular responsibility of judges in matters where it is worst needed in the times of terrorism and surveillance.
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