Wendy Patten is the type of person you want on your side when you get into trouble. Fast-talking, clever and determined to win, the advocacy director of the civil-liberties group Human Rights Watch is one of scores of US lawyers fighting to extend the rule of law to Guantanamo Bay.
Before she took her campaign to Britain last week, she reasoned there were two means of helping the detainees: either the US' allies could put pressure on the White House administration to soften its policies, or the US Supreme Court could intervene.
I met her in London the day after she arrived and, like many US liberals, her warm image of the Tony Blair government hadn't survived contact with Blair's Britain. The papers were full of David Blunkett's plans for British terror suspects to be tried at least partly in secret. It wasn't exactly Guantanamo justice the Home Secretary was proposing, but the similarities were striking. About 660 people are held in the US base in Cuba. They're not accorded the status of prisoners of war, nor are they criminals under the supervision of the US justice system. No one outside the US government knows who most of them are or what they are meant to have done.
The cases of terrorist suspects in Britain can be judicially reviewed by the courts, but that's the limit of New Labour's liberalism. The 16 foreigners interned indefinitely in Belmarsh and other prisons are once again official non-persons whose names can't be released. They haven't been charged or tried or found guilty beyond reasonable doubt by a jury. Their lawyers can't challenge the case against them. Instead they must leave the room when the evidence collected by Britain's famously well-informed intelligence services is examined. Their place is taken by "special advocates," barristers appointed by the government to scrutinize the intelligence on the detainees' behalf.
The problem is the advocates can't talk to the defendants, and have no way of finding out if they have alibis or innocent explanations for apparently suspicious behavior. Disgracefully, the Bar Council hasn't said that any lawyer participating in this sham will be charged with gross professional misconduct.
It's always worth watching what politicians do to foreigners, runs an old maxim. It shows what they would do to British citizens if they thought they could get away with it. True to form, the indifference of both barristers and the judges to the basic principles of English law has encouraged Blunkett to see if he can get away with treating British citizens as enemy aliens. If they are suspected of being terrorists, they will have special advocates foisted on them. Their trials will also be in secret and without juries. The charges against them won't have to be proved.
The affection for arbitrary justice puts the government's campaign to free British prisoners from Guantanamo into perspective. Every few weeks stories pop up about how the attorney general is trying this or that tactic to get them out. Lord Goldsmith may succeed, but his efforts should be seen for what they are: a bid to appease public opinion rather than a principled stand. Blair isn't telling US President George W. Bush that he can't ignore the Geneva Convention. He's happy for the US to carry on with internment (as he's sanctioning internment in Britain, he'd be a hypocrite if he was other than happy).
If pressure from allies is not forthcoming, that leaves the US Supreme Court as the only option. Patten and other lawyers believe there is at least a chance that the judges will intervene. Their guarded optimism will come as a surprise to anyone who has bought the Michael Moore view of the US. In what has become the received wisdom of the developed world's Left, the Supreme Court with its Republican majority is the plaything of the Bush White House. It provided legal cover for his "stealing" of the 2000 presidential election and can be relied upon to do whatever Bush wants it to do. After the massacres of Sept. 11, 2001, the US judiciary was indeed as reluctant as other Americans to fetter the power of the executive, but its deference may be declining.
As memories of the atrocity fade, there is a slight chance that the vanity of the judiciary will reassert itself. Judges in general, and US judges in particular, hate limits on their jurisdiction. When they look at Guantanamo they see a legal black hole, a land outside the law where they have no right to intervene.
The Bush administration decreed that the courts were powerless to review indefinite detention without trial because the prisoners were foreign nationals being held "beyond the ultimate sovereignty" of the US. In the World War II military tribunals dispensed rough justice on or close to the battlefield, it argued, and the war against Islamic fascism was being fought on the same principles as the war against European fascism.
But what made a kind of sense in the aftermath of the attacks on the World Trade Center and Pentagon makes little sense now. Guantanamo is about as far from the battlefields of Afghanistan and Iraq as it's possible to get.
The fiction may be exposed in the coming weeks. The first challenge goes to the Supreme Court in April and a ruling is expected in June. The detainees' lawyers have chosen the test case carefully. It is being brought in the names of Shafiq Rasul and Asif Iqbal, from Britain, and Mamdouh Habid and David Hicks from Australia. They variously claim they were picked up in Pakistan and Afghanistan. Crucially, all four are citizens of US allies. Like everyone else, they have been denied due process. They are "enemy combatants," neither soldiers nor criminals, who may be tried by a military tribunal at an undecided date or maybe not. The rules of war have been twisted to give the Bush administration maximum leeway. They are invoked to allow indefinite detention and ignored when lawyers point out that the Geneva Convention presumes that a prisoner is a POW until proven otherwise.
There are signs that the judges are beginning to resent the limit on their power to insist on proper distinctions. Just before Christmas, judges at the federal appeals court in San Francisco asked a good question: If the Bush administration was free to hold detainees outside the rule of law, was it also free to torture them or summarily execute them? Yes, replied the Government's lawyer, in theory Guantanamo detainees could be tortured and shot and there would be nothing the US courts could do.
The judges were horrified. This was "the first time that the government has announced such an extraordinary set of principles -- a position so extreme that it raises the gravest concerns under both US and international law." They snubbed the administration and ruled that the US courts could hear claims from the detainees.
The Supreme Court will decide whether the verdict stands. If it slaps Bush down, few people are thinking about what will happen next. Presumably, men picked up by mistake will be allowed to ask the US courts to free them. Possibly, men facing criminal charges will be sent to civilian courts rather than military tribunals. The unintended consequences of reasserting the rule of law may well be faced by the remainder: men who should be considered POWs.
Meanwhile, the death cults of the Islamic world show no sign of losing their appeal.
If al-Qaeda prisoners become prisoners of war, liberal opinion will be placated. But if the war lasts for decades they could be held for decades. Like everyone else, human rights campaigners should be careful of what they wish for in case their dreams come true.
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