SUNDAY MAGAZINE

A case for concern

CAMBRIDGE LETTER

BILL KIRKMAN

At Guantanamo ... a question mark over the fight against terror.

At Guantanamo ... a question mark over the fight against terror.  

LIVING under the rule of law is an important safeguard against misuse of power. We can all think of instances where we "know" that someone is a bad character and deserves to be punished. We can all imagine what our feelings would be if we had suffered from assault, or robbery, or the murder of a loved one. We know that in such circumstances we would not be the right people to decide on guilt, or on punishment. The law, we know — and not personal feelings, or prejudice — must take its course.

We know, too, that in applying the law the courts must operate on evidence, and that the evidence must be sound and clean.

Against that background, a ruling this week by the Court of Appeal, the second highest court in England and Wales, raises matters of deep concern. The court dismissed an appeal by 10 men who are being held without charge on suspicion of having links with international terrorism. The appeal was on the grounds that the evidence against them may have been extracted through torture at the United States military camp at Guantanamo Bay. The court unanimously rejected their appeal against continuing detention. Two of the three judges ruled that torture evidence could be used in a British court provided that the state itself had not "procured" it or "connived" at it. The third judge, Lord Justice Neuberger, dissented from this, stating that he did not consider it conducive to a fair trial.

There has been, thankfully and understandably, much criticism of the court's judgment. The Guardian pointed out that it breached both the United Nations convention against torture and the International Covenant on Civil and Political Rights. Writing in the same paper, Professor Malcolm Evans, Professor of Public International Law at the University of Bristol, pointed out that the prohibition of torture as a matter of international law is well established.

Amnesty International expressed itself appalled by the judgment, adding: "The rule of law and human rights have become casualties of the measures taken in aftermath of 9/11. This judgment is an aberration, morally and legally".

It is likely that there will be an appeal to the highest court, the House of Lords. Anyone who is concerned to ensure that the state does not have powers unconstrained by legal safeguards must hope that the House of Lords will take a less myopic view than the Court of Appeal of the implications of evidence obtained by torture.

Sadly, on the political front the British Government does not seem to appreciate the state of moral bankruptcy into which it has strayed. Its attitude seems to be that, in the "fight against terrorism" anything goes. That the U.S. has been prepared at Guantanamo Bay to suspend normal legal process and safeguards has been accepted without demur. In Britain, the Anti-terrorism, Crime and Security Act, rushed through Parliament in 2001 after the 9/11 attack on the U.S., allows foreign suspects to be detained indefinitely without charge or trial.

Without going any further, that is a most dubious piece of legislation. If one adds to it the fact that, under the Court of Appeal's ruling, the "evidence" on which the government decides to detain people in this way can be evidence obtained through torture, we have to ask by what standards the state is operating — and, as a corollary, what standards it is protecting.

Of course the threat of terrorism is real (and so far as one can see increased, rather than diminished, by the attack on Iraq and the situation which has developed there). Of course we need to take it seriously. Of course anyone may be affected by a terrorist attack. Surely, however, one of the greatest strengths we possess is that we live in a society where things can be, and are, decided by democratic means, not by terrorism. In such a society, terrorism is an aberration. That does not mean that it cannot happen. It can, just as murder, or robbery, can happen. But when they do, we deal with them in accordance with law. We do not suspend the law.

The House of Lords has yet to speak. There is, however, an urgent need for political action. The Government should recognise, in the words of Amnesty International, that the Court of Appeal ruling is an aberration morally and legally. And do something about it. As a citizen, I would find that far more reassuring than the knowledge that it believes vicarious torture to be acceptable.