One law for the West
Such is the fear of terrorism that our governments now treat natural and legal justice with contempt
David Aaronovitch Sunday November 30, 2003 The Observer
David Blunkett got into trouble again last week, and yet another one of those he-said, she-said synthetic rows began a slow and tedious trajectory through the news life of the nation.
Following the detention of a Gloucester man under anti-terrorist legislation, the Home Secretary told radio listeners that the police believed the man to 'pose a very real threat to the life and liberty of our country'. Pretty soon, other Ministers were being asked to disown Mr Blunkett, the chairman of the Bar Council was laying into him for prejudicing any future trial, and Louise Christian, the one-stop authority on all questions from terrorist suspects to rail crashes, had accused the bounder of infringing natural justice.
There's a problem with this excess crossness. Had the police not believed these things, then they would not have been entitled to lift Mr Sajid Badat in the first place, search his house and immure him in the 'high-security' Paddington Green super-nick. Their actions made their belief in his possible guilt explicit. Their revelation of a find of explosives added to the impression.
When he spoke, Mr Blunkett probably wasn't thinking about a trial; that's only part of the Home Secretary's brief. He was almost certainly calculating whether the detention might have helped to prevent a terrorist attack. Yesterday, other papers reported the discovery of hollowed-out shoes, and one carried a front-page splash on the possibility that a new attempt was being planned to blow up a transatlantic flight with a shoe-bomb. There seemed to be no concern that this report might prejudice a trial. But perhaps there should have been.
This is the dilemma of the moment, the dilemma that cannot be wished away. Justice is one thing, protection is another. Courts try cases because of crimes that have - by and large - already happened, yet we are increasingly in the business of stopping things happen. Two years ago, Richard Reid came within a bad fuse's length of blowing a planeload of Christmas families out of existence. We want future Reids nabbed before they get to the airport. We want them interrogated; we want to know who their associates are and where to find them.
And we operate in a soup. In Gloucester, no one seemed able to believe that Mr Badat could be involved in mad plots. One friend said: 'He is popular and he has never mentioned anything about fundamentalism or terrorism; that is simply not him.'
A few months earlier, Hounslow resident Taz Hanif had said of his brother, Asif Hanif: 'He wasn't the sort of person [to be an Islamic militant]. Anyone who knew him would tell you.' Yet it was definitely young Asif's separated head, legs and torso that came to decorate the exterior of Mike's bar in Tel Aviv, along with the bodies of a dozen other civilians, including the French waitress, who had had her legs ripped off by the blast.
I have long had a nightmare about the consequences of terrorism in Britain. I already see a tendency towards popular Islamophobia (low-level anti-Semitism has a slight edge only among the intelligentsia). A successful attack on a domestic British target by a British Muslim would be far more dangerous to the minority community than the Birmingham bombing of 1974 was for the Irish residents of Britain.
Worries like this have led me not to think as hard as I should have done about what has been going on at the tip of Cuba. I have heard many of the usual people fulminating about the crimes of the Americans at Guantanamo Bay, and thought that they probably had a point, but what else was one to do? By all means, release the kids (all four of them), bring as many of the others to trial quickly, and that's about it. After all, what could be worse than effectively opening the gates and letting out several hundred hardened jihadis, free to blow up Washington, Riyadh or Stoke Poges leisure centre?
But the senior law lord Lord Steyn is not one of the usual people. He isn't a kneejerk single-issue campaigner or a parti pris semi-politician. So his lecture last week on Guantanamo constituted a butt in the ribs to those of us who have been turning the other way when it has been mentioned. Turning away because we could see that there might be merit in the Administration argument that many detainees were, 'among some of the worst of the worst of the al-Qaeda with whom we have fought'.
Lord Steyn described as 'a monstrous failure of justice' the decisions of US courts not to consider credible medical evidence of torture when trying Camp Delta cases. He went on: 'Trials of the type contemplated by the United States government would be a stain on United States justice. The only thing that could be worse is simply to leave the prisoners in their black hole indefinitely.'
His target was the sheer and deliberate arbitrariness of the procedures. 'The purpose of holding the prisoners at Guantanamo Bay was and is to put them beyond the rule of law [and] beyond the protection of any courts.' There was not even any way, he pointed out, of deliberating whether the detention of any particular individual was arguably justified.
Unsurprisingly, Lord Steyn was contemptuous of the horse trading so that Britons in Camp Delta would, on trial, not face the death penalty. 'How,' he asked, 'could it be morally defensible to discriminate in this way between individual prisoners? It lifts the curtain a little on the arbitrariness of what is happening at Guantanamo Bay and in the corridors of power on both sides of the Atlantic.'
Many lawyers and experts sympathetic to the campaign against terrorism believe that the Bush Administration could have established a legal basis for detention under the Geneva Conventions, treating detainees as prisoners of war without compromising security. Instead, the US government opted for an arbitrary and legally rootless process, which has failed to make distinctions between high- and low-risk detainees, and has kept both in an unsanctioned limbo for nearly two years. They have made it up as they have gone along.
One result, according to the Red Cross, is that the mental health of the detainees has 'become a major problem'. They live in perpetual uncertainty, whether they are Taliban high-fliers, wannabe suicide bombers, daft temporary warriors picked up in Islamabad, or blokes who were in the wrong place at the wrong time. And, as things drag out, the stories will become more and more difficult to bear.
Example matters, of course. Journalist Michael Stephens recently pointed out, with regard to Guantanamo Bay, how some IRA men had been weaned from violence by their experience of justice. In ex-IRA man Eamon Collins's book, Killing Rage, Collins - who was guilty - describes how he had his case dismissed because he had been tortured.
'The judge's words sent a real shock through my body. [He] had brought to life for me, even though he loathed the IRA, principles which were important boundaries between civilisation and barbarism... so even though he suspected I was guilty as hell, he was willing to let me walk free on grounds that many people would have regarded as a technicality, a foolish abstraction.'
And proportion matters, too. At what point does our behaviour become as bad in consequence as the thing which we desire to prevent? There are men languishing in Guantanamo Bay who have probably done nothing or who are no danger, have not been assessed, do not know when or if they will be tried, and who have not seen their homes and families for 20 months and wonder if they ever will.
If this sounds familiar it is because - somehow - we have become the state versions of the hostage-takers of Beirut.