Although I have not read the case, and I probably wouldn’t understand it anyway: having no experience with American Constitutional Law, I’d like to add my two pence.
The coalition justify their draconian actions to combat the ‘new threat’ posed by ‘international terrorism’ and this is necessary to win the ‘War on Terror’ (WOT). The WOT has been used by states to campaign against who they decide to be an enemy, with innocents being caught in the metaphorical crossfire. (1) States and regimes which stand against the liberal and democratic values which the coalition is ‘fighting’ for have jumped onto this international bandwagon to justify their actions. Russia uses the WOT as its reason d’être
in Chechnya,(2) as such regimes now ‘[fear] less critical scrutiny’ from bodies like the UN which are dominated by states in the coalition. This WOT eludes definition, this ambiguity allows politicians to reserve the right to bleat the phrase adapting it to. It is a war which conceived to have an end: ‘there is no territory contested; no peace talks conceivable…’ it continues as long as there is fear the ‘enemy’ will strike. The danger is no longer Al-Qa’ida or any other organisation
, even with their destruction, their ideology will live on in those who have been radicalised by draconian and imperialist actions of states.
The detention at Guantánamo Bay, much the same as internment under Margaret Thatcher, has the potential to antagonise an entire community. The Muslim community feels marginalised and believe the anti-terror laws are directed at them. This is perpetuated by incidents such as the Forest Gate raids which show that preventative tactics do not always work and may snare innocents. The harsher the methods, the more isolated a community will become. This is why the approach in criminal law is to prosecute after the offence. For terrorism this is not an option as the physical and political damage is already done. This is one of the fundamental issues surrounding terror legislation, and governments should cease seeing security and liberty as standing in tension.
With the onset of ‘international terrorism’ and the WOT, states have subjected principles of domestic law which would have been previously understood as ‘fundamental’ to severe scrutiny. Following attacks there is an understandable temptation for politicians to act quickly and to be perceived to be in control of the situation, especially in a political system like the US. To a certain extent curtailment of Civil Liberties are effective, but there needs to be a point which states cannot cross. Some human rights should be seen as fundamental, and should be respected.
Guantánamo has been described as the ‘vanishing point of the law’(4) where ‘bad people’(5) are sent by the US government using extra-judicial means. This totally disregards habeas corpus
; the cornerstone of the rule of law.(6) The US does have ‘exclusive [executive] control’(7) over the territory, and their disregard to the rule of law makes great case for a change in the international legal order with regards to terrorists. There is a need for the rule of law whenever someone’s liberty is at stake; Lord Bingham judged that it even applied in a ‘terrorist situation.’ It is submitted however that this principle should be taken further in a terrorist situation; the presence of the rule of law is paramount. In response to terrorism the state often overreacts, and the judiciary needs to scrutinise such actions. It would be a ‘familiar tool of tyranny’(
for the executive to remove liberty without proving the guilt of the accused. People often postulate the question, ‘would you rather detain 100 innocents or let one terrorist through the net?’ in a civilised society which believes in freedom and the equality of all people the answer must be the latter, acting in any other way to clamp down on suspected
terrorists will only jeopardise the society the state is attempting to protect, marginalising the very communities which are needed to combat terrorism.
It is common knowledge that the ‘guests’ in Guantánamo are subjected to torture, and the reality is, not all detainees are involved in terrorism. Some the ‘bad guys’ have been released with no charges sought, such as with the Tipton Three. Regardless of their ‘guilt,’ international conventions(9) are categorical, torture is never
permitted, attaining the status of jus cogens
.(10) All governments of democratic states must respect human rights,(11) even if the result is democracy needing to fight ‘one hand behind its back.’(12) This is the price one pays for democracy, and this is what separates people with democratic values and those who are attempting to destroy it. People are fundamentally flawed in asserting that in ‘exceptional moments’ a civilised society can sacrifice the rights afforded by jus cogens
. If a state deviates from a jus cogens
such as torture it will potentially unravel the social, political and legal fabric of the very society and people it aims to protect. The stated disregard of the law and due process shows that even the states which have been founded on freedom and democracy sometimes cannot cope with the threat of terrorism.
Personally I generally fall down on the security side of the debate, however I see some Civil Liberties and Human Rights as sacrosanct and this is why I agree with the outcome of the case.
(1) For example the Forest Gate Raids
(2) J. Russell, Chechnya: Russia’s “War on Terrorism”
First Edition, (Oxford; Routledge, 2007)
(3) Cannot find where I quoted that from
(4) Marine Colonel William Lietzau, quoted in Rose, Guantanamo, 23
(5) President Bush, White House Press Conference, 17th July 2003
(6) P. Sands, Lawless World
, First Edition (London; Penguin, 2005) page 144
(7) R (Abassi) v. Sec. of State for Foreign and Commonwealth Affairs
 EWCA Civ 1598 para 67
(A v. Secretary of State for the Home Department
 UKHL 54 para 226
(9) Such as the United Nations Convention Against Torture 1987
(10) Prosecutor v. Anto Furundžija
, Case No. IT-95-17/1-A, Judgement, 21 July 2000
(11) People’s Union of Civil Liberties v. Union of India
2003 SOL Case No 840
(12) Public Committee Against Torture v. Israel
, May 26, 1999 at page 845