The terror threat is being used to attack civil rights here and in the US
Hugo Young Tuesday December 11, 2001 The Guardian
John Ashcroft, the US attorney general, is a politician of the ultra-hard right. David Blunkett, the British home secretary, comes from the old Labour left. They meet tomorrow, when Mr Ashcroft makes his first stop on a tour of coalition nations designed to ensure they all understand what must be done, in the field of law and justice, to defeat international terrorism.
He may have some difficult conversations. But his talk with Mr Blunkett should be easy. Anglo-American relations now reach into zones of thinking about justice with a ferocity that transcends the opposite origins of these two ministers. The special relationship is not dead. It's alive and kicking the ass of all judges and lawyers who ask a question about the anti-terrorism machine.
Ashcroft and Blunkett have in common, first, the tampering with due process. They've instituted regimes that remove the rights of anyone whom the security authorities merely suspect of aiding and abetting terrorism, a word both of them are prepared to define widely. Ashcroft has already arrested 1,200 people, though that number is unofficial since their names are nowhere collectively available. Blunkett is pushing through parliament a power of detention without trial, though in Britain the list of detainees will probably not be secret.
These ministers, secondly, share a similar attitude to critics. Ashcroft implied last week that critics were traitors to US interests. "Your tactics only aid terrorists," was his brutal verdict. Criticism, he told the Senate, "gives ammunition to America's enemies and pause to America's friends". For his part, Blunkett charged anyone who declined to let his anti-terrorism bill go through on the nod with complicity in a terrorist attack at Christmas.
Ashcroft may be shameless, while Blunkett whinges about his responsibilities and moans defiantly against a judge-critic for patronising him as "a working-class lad from a council estate". But the effect is the same.
The British, here, are particularly bonded to their superior ally. Blunkett wrote a piece yesterday defending his proposed regime on the grounds that "a heightened level of risk comes with our military alliance with the US". In other words, the UK is a special target, even though no threat has yet been identified. Likewise, we say we are in the middle of "a public emergency threatening the life of the nation". If we didn't say that, we could not justify derogating from article 5 of the European convention on human rights.
Yet the life of this nation is palpably not threatened. There have been no terrorist attacks here. Only by describing the September 11 attack on the US as somehow an attack on the UK can this fiction be sustained. It would very likely not survive a hearing in the European court.
In some respects, admittedly, Ashcroft goes further than Blunkett. He refused to let the FBI check its records to see whether any of his 1,200 arrestees had bought guns before September 11. That would have meant defying the gun lobby, for which the private sanctity of this database is a cardinal adjunct to the right to bear arms. There are some rights that even the terrorist threat cannot be allowed to override.
Ashcroft also persuaded President Bush to sign an executive order creating military tribunals to try any non-US citizen suspected of aiding terrorism. These will hold secret trials, under military officers, without a defendant having the right either to see the evidence or appeal to a civilian court.
The system envisaged by Blunkett isn't a great deal less ruthless. Here too the suspect will not see the evidence, nor will the suspect's preferred lawyer be trusted with confidential information. But the crunch similarity is in the removal, by order, of judicial review from the commission that will supervise detention without trial. Judicial review may only seldom be appropriate, and even less frequently successful.
The regular law poses many filters and tests before occasionally finding against the state. But every minister and every tribunal can make mistakes. There needs to be a backstop, in these overheated and threatening times. Yet the government is fighting, with a tenacity John Ashcroft must admire, against keeping even that small protection open.
No other country in Europe feels the need to go this far in arranging for detention without trial. No other country is seeking a special derogation from the European convention, to deal with terrorism. Is Britain uniquely under threat? Uniquely indifferent to the unfairness that may result from the curtailment of due process? Or uniquely determined to show that the common law, of which the US is the only other relevant exponent, can be readily manipulated to override fundamental liberties?
There is one shaft of light in this dismal picture. The US Senate has not taken Ashcroft's draconian despatch of civil rights lying down. Democrats have asked some potent questions, determined to assert that general support for the anti-terrorism campaign doesn't mean that all anxiety about the details should be silenced. They don't like the tribunals. They're not prepared to yield entirely to populist panic.
Here the Commons have been useless. They took 16 hours to carry all stages of a 126-clause measure that reaches beyond terrorism into wide breaches of personal privacy, massive surveillance, and the wholly disconnected matter of incitement to religious hatred. In a long record of shaming fealty to whips, never have so many MPs showed such utter negligence towards so impressive a list of fundamental principles.
The Lords, however, have become the Senate. Their debate is serious, their resilience formidable and their morality alive. They don't oppose the anti-terrorism campaign, but they want to keep it within sane limits. They scrutinise, question and amend. So far they've voted, most importantly, to keep judicial review and curb surveillance. They'll be extending the work this week. They've also been important players on the joint committee on human rights, whose chair, Jean Corston MP, also chair of the parliamentary Labour party, must be exempted from the previous paragraph. With devastating sobriety, the committee wrote two reports that dismantled most of the claims Blunkett has made about reconciling his bill with the human rights convention.
Have these been influential? Fat chance. The home secretary thinks he reached heights of generosity by promising a review of his measure after two years. It's an empty proposal, though the Tories may fall for it. Once in place, the act will be impossible to shift. Arguments from security are like that. There's always another hypothesis to guard against. That's what justice ministers are in office to assert. The hard rightist and once-soft old labourist are fellow spirits, hungry for power in the name of a security that piously throws to the jailers the freedom it's supposed to be defending.