Published: 12:01AM BST 18 Oct 2007
Can we still preserve the rule of law while fighting international terrorism? There are grave threats in some parts of the world to what Dicey called "the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power". But here in Britain we find a greater willingness to protect the rights of individuals, even those suspected of wishing to undermine the rule of law itself.
It is troubling, for example, to find Canada unwilling to rescue one of its own citizens, a former child soldier, from what a US military lawyer described this week as an "Alice in Wonderland" legal process at Guantanamo Bay.
On the other hand, our own Government is now willing to take back five other detainees, even though none is British.
You may remember that Lord Goldsmith, as Attorney General, fought hard to persuade the US administration that all the British detainees should be released from the US detention centre at Guantanamo Bay.
He achieved this by January 2005, and British citizens were among the 444 men who have been released since the camp was opened in 2002.
But some 330 detainees remain in custody. They include six men who – though not British citizens – had previously lived in Britain.
Nothing to do with us, the Foreign Office said initially. It's up to their own countries to campaign for their release.
When their relatives challenged this argument, the foreign secretary, Margaret Beckett, put every effort into defending the Government's position.
Last October, she was vindicated in the Court of Appeal. The courts would not interfere in the conduct of foreign affairs, said Lord Justice Laws, provided "the government strictly complies with all formal requirements, and rationally considers the matters it has to confront".
This refusal, he stressed, was not through lack of concern for the detainees, some of whom had been subjected "at least to inhuman and degrading treatment". But it was the court's duty to decide "where lies the legal edge between the executive and judicial functions", and that was a matter for the Government.
Nearly a year went by. Then in August, while Parliament was away, Mrs Beckett's successor David Miliband suddenly announced that he had written to his opposite number Condoleezza Rice asking for the return of five of the six men, who had previously been granted refugee status or leave to remain in Britain – Shaker Aamer, Jamil El Banna, Omar Deghayes, Binyam Mohamed and Abdennour Sameur.
Why the U-turn? Was this an example of Gordon Brown distancing himself from Tony Blair? Or did the Government fear that it was about to lose the appeal that was due to come before the law lords this month? Probably a bit of both.
Another factor that may have swung the balance was work by the London-based campaign group Reprieve. One of its US-qualified lawyers, Zachary Katznelson, went to Guantanamo Bay this week to tell the men that Britain is trying to get them back.
He is not acting for them, but only US citizens are allowed in. Why does Mr Katznelson, 34, work for suspected enemies of America? "I see my role as fundamentally patriotic," he tells me. "I am serving my country by doing what I am doing.
"What is happening in Guantanamo is making the world less safe. What the US military does is reflected by the world back to us. If the US military uses abusive interrogation techniques – or holds people in these conditions without charge, without trial – it sets the example for what's going to happen to US personnel captured overseas."
Mr Katznelson is confident that the US will release the five foreigners named by Britain. But no such request has been made by Canada for one of its own citizens, Omar Khadr.
On the face of it, Khadr's case attracts little sympathy. Captured on the battlefield in Afghanistan in 2002, he has been detained for five years. Khadr – one of only three people charged by the Americans with war crimes – is alleged to have been in a group of al-Qa'eda members who engaged US and coalition forces with small-arms fire, throwing a hand grenade that killed a US special forces sergeant. The Canadian is also accused of conspiracy with Osama bin Laden to attack civilians and commit murder.
On the other hand, he was only 15 when he was wounded and captured. There must be at least some doubt about the level of responsibility he should bear for his alleged actions.
He had been taken to Afghanistan by his father, who was subsequently killed in a firefight. It is not clear whether US troops were in uniform, raising the possibility of self-defence.
In 2004, a US combatant status review tribunal decided that Khadr was an enemy combatant. No surprise there. But engaging in combat with an enemy can be an honourable thing. What the tribunal did not decide was that Khadr's combat was unlawful.
This proved crucial when Khadr was brought before a special court established under the US Military Commissions Act 2006. That legislation says military commissions "shall not have jurisdiction over lawful enemy combatants". Since the earlier tribunal had not found that Khadr was an unlawful enemy combatant, and since the tribunal was the only body empowered to decide his status, the military judge dismissed the charges against him for lack of jurisdiction.
The US government immediately appealed. A review court told the military judge, Col Peter Brownback III, that he could decide, after all, whether Khadr was an unlawful combatant – and then try him if he was.
Khadr's lawyers then appealed to a federal court in Washington. Despite that, Col Brownback announced on Monday that Khadr would be tried early next month. His lawyer is now seeking to have the trial postponed pending the appeal.
That lawyer, incidentally, is Lt Cdr William Kuebler, who was wearing full naval uniform when I met him at his London hotel. Adding his voice to growing criticism of the military commissions system this week,
Lt Cdr Kuebler said the US Defence Department was "so desperate to validate this broken process" that it would disregard just about any concern of fairness to the accused.
"They write a rule giving Omar a right to appeal, they tell Omar he has a right to appeal and, when he appeals, they claim he doesn't have a right to appeal – Alice in Wonderland really is the only way to describe it," he said.
"The US would never tolerate this kind of treatment for an American, yet the Canadian government continues to agree with the US view that it's good enough for a Canadian."
Lord Justice Laws was of course right to draw a sharp line between the roles of ministers and judges. But Mr Katznelson believes that the US legal system has been "perverted" by Guantanamo, leaving defence lawyers with no option but to campaign for their clients.
"Once you mention the word 'terrorism', American justice seems to stop," he says. "So you try politics, you try educating folks, and you hope that, some day, the courts will wake up and realise they have a role to play too."
Source:http://www.telegraph.co.uk/news/uknews/1566557/Law-Is-the-rule-of-law-a-victim-of-terrorism.html
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