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Shorter Articles, Comments, and Notes: ‘Clear and Present Danger’: Responses to Terrorism

Published online by Cambridge University Press:  17 January 2008

Vaughan Lowe
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Abstract

It was Oliver Wendell Holmes who used the words ‘clear and present danger’ in the judgment of the US Supreme Court in the Schenk case in 1919.1 The Court upheld the conviction of Charles Schenk, general secretary of the American Socialist Party, under the 1917 Espionage Act, which prohibited attempts to obstruct military recruitment. Schenk had distributed leaflets allegedly calculated to cause insubordination and obstruction among recruits. He argued that his conviction was incompatible with the freedom of speech guaranteed by the First Amendment.

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 54 , Issue 1 , January 2005 , pp. 185 - 196
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 Schenk v US, 249 US 47 (1919).Google Scholar

2 See on this Kennedy, HJust Law (Chatto & Windus London 2004).Google ScholarPubMed

3 See the brilliant study by Simpson, AWBIn the Highest Degree Odious: Detention without Trial in Wartime Britain (OUP Oxford 1994). The same is true in international law: the Geneva Conventions of 1949 were drafted by men and women who understood well the role of clandestine forces, and of combatants such as the French resistance.CrossRefGoogle Scholar

4 <http://www.guardian.co.uk/alqaida/story/0,12469,830286,00.html>..>Google Scholar

5 See, eg, the jurisprudence of the UN Human Rights Committee, summarized in Joseph, S, Schultz, J, and Castan, MThe International Covenant on Civil and Political Rights (2nd ednOUP Oxford 2004) paras 8.01–8.18 (‘The Right to Life—Article 6. Right not to be Killed by the State’).Google Scholar

6 See Greenwood, C ‘War, terrorism and international law’ (2003) 56 Current Legal Problems 505–30.CrossRefGoogle Scholar

7 Greenwood, Cf in Fleck, D (ed) The Handbook of Humanitarian Law in Armed Conflicts (OUP Oxford 1995) 218: ‘Military operations may not be carried out beyond the areas of war. That area is, however, extensive since it includes all of the territory of the parties to the conflict, and the high seas, and exclusive economic zones, including the exclusive economic zones (EEZs) of neutral states …’Google Scholar

8 The Sedgefield speech appears at <http://news.bbc.co.uk/2/hi/uk_news/politics/3536131.stm>..>Google Scholar

9 <http://news.bbc.co.uk/2/bi/uk_news/politics/3536131.stm>..>Google Scholar

10 Steyn, J ‘Guantanamo Bay: The Legal Black Hole’ (2003) 53 ICLQ 1–15.CrossRefGoogle Scholar

11 This is the kind of development of the law within the UN framework for which I have argued previously: see (2004) 52 ICLQ 859 at 868–9.Google Scholar

12 See Art 15; and cf the Human Rights Act 1998 (Designated Derogation) Order 2001, SI 2001 No 3644.Google Scholar

13 See Art 4.Google Scholar

14 ‘Anti-Terrorism, Crime and Security Act 2001 Review: Report’, HC 100 <http://www.atcsact-review.org.uk/lib/documents/18_12_2003/Report.pdf>..>Google Scholar

15 ‘Counter Terrorism Powers: Reconciling Security and Liberty in an Open Society’, Cm 6147.Google Scholar

16 S 21.Google Scholar

17 Para 25.Google Scholar

18 Kennedy, HJust Law (Chatto & Windus London 2004) 44.Google ScholarPubMed

19 Dworkin, R ‘Terror and the Attack on Civil Liberties’ (2003) 50 New York Review of Books No 17, 6 11 2003, 37 at 38.Google Scholar