Law lord castigates US justice
Guantanamo Bay detainees facing trial by 'kangaroo court'
Clare Dyer, legal correspondent Wednesday November 26, 2003 The Guardian
A senior law lord last night delivered a scathing attack on the US government's and the American courts' treatment of the detainees at Guantanamo Bay, branding it "a monstrous failure of justice".
Lord Steyn, one of the most senior judges in Britain's highest court, described the military tribunal for trying the detainees as a "kangaroo court".
The term, he said, implied "a pre-ordained arbitrary rush to judgment by an irregular tribunal which makes a mockery of justice". He asked whether the British government should not "make plain, publicly and unambiguously, our condemnation of the utter lawlessness" at Guantanamo Bay.
Delivering the FA Mann lecture at Lincoln's Inn in central London, Lord Steyn added: "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."
Lord Steyn said it was a recurring theme in history "that in times of war, armed conflict, or perceived national danger, even liberal democracies adopt measures infringing human rights in ways that are wholly disproportionate to the crisis. Often the loss of liberty is permanent".
Judges were often too deferential to the executive even in peacetime. He regarded it as "a monstrous failure of justice" that so far the US courts had decided they could not even consider credible medical evidence that a detainee had been or was being tortured.
The Red Cross had described the camp at Guantanamo Bay as principally a centre of interrogation rather than detention. Officials had been reported as saying that the techniques of interrogation were "not quite torture, but as close as you can get".
"The purpose of holding the prisoners at Guantanamo Bay was and is to put them beyond the rule of law, beyond the protection of any courts, and at the mercy of the victors," Lord Steyn said.
"The procedural rules do not prohibit the use of force to coerce prisoners to confess," he went on. "On the contrary, the rules expressly provide that statements made by a prisoner under physical and mental duress are admissible 'if the evidence would have value to a reasonable person', ie military officers trying enemy soldiers."
Lord Steyn said the prisoners at Guantanamo Bay had no access to the writ of habeas corpus to determine whether their detention was even arguably justified. The military would act as interrogators, prosecutors, defence counsel, judges and executioners. Trials would be held in secret, with none of the basic guarantees for a fair trial.
The jurisdiction of the US courts was excluded. The military controlled everything, subject to decisions of the president even on guilt or innocence in individual cases, as well as sentences. President Bush had already described the prisoners as "killers".
The concession extracted by the attorney general, Lord Goldsmith, that the British detainees would not face the death penalty, gave a new dimension to the concept of "most favoured nation" treatment, he said. "How 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."