In fighting the “war on terror,” the British Government has both sought to use previously existing legal power and, through Parliament, has enacted new power. The executive’s use of these powers has been tested in the courts. In the Belmarsh case, A. v. Secretary for State for the Home Department, detainees who had been held without charge for an indefinite period of time under section 23 of the Anti-terrorism, Crime and Security Act 2001, challenged their detention in the courts. The court decided that since the government had sought to take power to detain just non-nationals and not nationals, and since it was prepared to let such non-nationals leave the United Kingdom rather than be detained, and since it was unable to convince the court that there was a greater threat from non-nationals than from nationals, the government’s actions were not compatible with the Human Rights Act 1998, since they were disproportionate to the threat being posed. Consequently, the court quashed the 2001 Derogation Order and issued a declaration of incompatibility with the Human Rights Act 1998 with respect to Section 23 of the Anti-terrorism, Crime and Security Act 2001. This judicial insistence on protecting the rule of law from either an executive or a legislature too narrowly focused on terrorist activity may serve to ameliorate a concern that a criminal justice system based on equal rights is under threat from measures that put Muslims under a separate and more punitive legal process. 40 references