11 September 2001 : war, terror, and judgement /

ELSPETH GUILD

Immigration, asylum and national security have traditionally had an uneasy relationship. ¹ The right of citizens to the limitation of arbitrary exercise of state power is rarely extended in full to non-nationals. It is never extended to the right not to be expelled. ² Among the principles that inform national security is the link which citizenship represents between the State and the individual as one of allegiance. The failure of the individual to respect this link in its most extreme form may result in treason, one of the crimes for which the most severe penalties have traditionally been reserved. ³ A foreign national does not owe this duty of loyalty to the State, so in the logic of national security he or she does not enjoy an equivalent protection from arbitrary state action based on security concerns.

When, following the 11 September attacks in the USA, it became apparent that the persons suspected of perpetrating the attacks were foreigners in the USA the issues of immigration and asylum became engaged. The fact that the alleged perpetrators of the attacks were of Arab origin, apparently nationals of countries outside the USA and the European Union, created a link between foreignness and threat which would be central to the response in many ways. The focus encompassed the interaction of terrorism, borders and movement of persons. The transformation of US internal security by the new concept of homeland security is central. The convergence of sovereignty, territory and security is the essence of the US strategy in the war against terrorism. The letter of 16 October 2001, from President Bush to the President of the European Commission, Romano Prodi, regarding the security imperatives of the USA as regards action in the European Union, demonstrates this interest clearly. Many of the areas where the US President requests action are related to the securing of EU borders with respect to the movement of persons to and from the USA. ⁴

There has been a further change in the nature of security that engages the nexus of territory, movement of persons and terrorism. A sovereign state,

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