Guantánamo:
A Monstrous
Failure Of Justice
By Johan Steyn
The
International Herald Tribune
28 November, 2003
The following was adapted by the IHT from the 27th F.A. Mann Lecture,
delivered in London on Tuesday. Lord Steyn is a Lord of Appeal in Ordinary,
one of 12 judges who sits on Britain's highest court.
The most powerful
democracy is detaining hundreds of suspected foot soldiers of the Taliban
in a legal black hole at the U.S. naval base at Guantánamo Bay,
where they await trial on capital charges by military tribunals.
Democracies must
defend themselves. Democracies are entitled to try officers and soldiers
of enemy forces for war crimes. But 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. One tool at hand is detention without charge or trial. Ill-conceived,
rushed legislation is passed granting excessive powers to executive
governments which compromise the rights and liberties of individuals
beyond the exigencies of the situation. Often the loss of liberty is
permanent.
Even in modern times
terrible injustices have been perpetrated in the name of security on
thousands who had no effective recourse to law. Too often courts of
law have denied the writ of the rule of law with only the most perfunctory
examination.
In the context of
a war on terrorism without any end in prospect, this is a somber scene
for human rights. But there is the caution that unchecked abuse of power
begets ever greater abuse of power. And judges do have the duty, even
in times of crisis, to guard against an unprincipled and exorbitant
executive response.
After the horror
of Sept. 11, 2001, Congress rushed through the Patriot Act which gave
to the executive vast powers to override civil liberties. Congress promptly
authorized President George W. Bush to use all necessary force against,
inter alia, those responsible for the terrorist attacks of Sept. 11
to prevent further attacks. On Oct. 7, 2001, the air campaign against
Afghanistan began.
On Nov. 13, 2001,
the president issued an order providing for the trial by military commissions
of persons accused of violations of the laws of war. That order has
been repeatedly amended. Since January 2002, about 660 prisoners have
been transferred at first to Camp X-Ray and then Camp Delta at Guantánamo
Bay. The number included children between the ages of 13 and 16 as well
as the very elderly. Virtually all the prisoners are foot soldiers of
the Taliban. By a blanket presidential decree, all the prisoners have
been denied prisoner-of-war status.
How prisoners at
Guantánamo Bay have been treated we do not know. But what we
do know is not reassuring. At Camp Delta the minute cells measure 1.8
meters by 2.4 meters (6 feet by 8 feet). Detainees are held in these
cells for up to 24 hours a day. Photographs of prisoners being returned
to their cells on stretchers after interrogation have been published.
The Red Cross described the camp as principally a center of interrogation
rather than detention.
The purpose of holding
the prisoners at Guantánamo 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. The procedural rules do not prohibit the use of force
to coerce prisoners to confess. 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," i.e. military officers trying enemy soldiers.
At present we are
not meant to know what is happening at Guantánamo Bay. But history
will not be neutered. What takes place there today in the name of the
United States will assuredly, in due course, be judged at the bar of
informed international opinion.
The regime applicable
at Guantánamo was created by a succession of presidential orders.
It can be summarized quite briefly. The prisoners at Guantánamo,
as matters stand at present, will be tried by military tribunals. The
prisoners have no access to the writ of habeas corpus to determine whether
their detention is even arguably justified. The military will act as
interrogators, prosecutors, defense counsel, judges, and when death
sentences are imposed, as executioners.
The trials will
be held in secret. None of the basic guarantees for a fair trial need
be observed. The jurisdiction of U.S. courts is excluded. The military
control everything. It is, however, in all respects subject to decisions
of the president as commander in chief, even in respect of guilt and
innocence in individual cases as well as appropriate sentences. The
president has made public in advance his personal view of the prisoners
as a group: He has described them all as "killers." The Court
of Appeals for the District of Columbia Circuit has recently ruled that,
despite the fact that the United States has had exclusive control over
Guantánamo Bay since 1903, the courts have no jurisdiction to
examine the legality of the detention of the prisoners. But on Nov.
10 the U.S. Supreme Court granted certiorari for the case to proceed
to a substantive hearing on the question whether the lower courts were
right to conclude that they had no jurisdiction to entertain habeas
corpus applications. This will be the only issue on which the Supreme
Court will rule. That hearing will take place in spring next year.
As matters stand
at present the U.S. courts would refuse to hear a prisoner at Guantánamo
Bay who produces credible medical evidence that he has been and is being
tortured. They would refuse to hear prisoners who assert that they were
not combatants at all. They would refuse to hear prisoners who assert
that they were simply soldiers in the Taliban army and knew nothing
about Al Qaeda. They would refuse to examine any complaints of any individuals.
The blanket presidential order deprives them all of any rights whatever.
As a lawyer brought
up to admire the ideals of American democracy and justice, I would have
to say that I regard this as a monstrous failure of justice.
The question is
whether the quality of justice envisaged for the prisoners at Guantánamo
Bay complies with minimum international standards for the conduct of
fair trials. The answer can be given quite shortly: It is a resounding
No. The term kangaroo court springs to mind. It conveys the idea of
a preordained, arbitrary rush to judgment by an irregular tribunal which
makes a mockery of justice. 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.
Looking at the hard
realities of the situation, one wonders what effect it may have on the
treatment of United States soldiers captured in future armed conflicts.
It would have been prudent, for the sake of American soldiers, to respect
humanitarian law.
Second, what must
authoritarian regimes, or countries with dubious human rights records,
make of the example set by the most powerful of all democracies?
Third, the type
of justice meted out at Guantánamo Bay is likely to make martyrs
of the prisoners in the moderate Muslim world with whom the West must
work to ensure world peace and stability.
What other route
could the United States have taken? The International Criminal Court
could not be used to try the Guantánamo Bay prisoners because
the Rome Treaty applies prospectively only, and the prisoners were captured
before the Treaty came into force in July 2002. The United States courts
could have assumed universal jurisdiction for war crimes. The prisoners
would have received fair trials before ordinary United States courts.
It would have been an acceptable solution. On the other hand, the Muslim
world would probably not have accepted this as impartial justice. The
best course would have been to set up through the Security Council an
ad hoc international tribunal. That would have ensured that justice
is done and seen to be done.
There is, of course,
a dilemma facing democracies. Aharon Barak, President of the Supreme
Court of Israel, presided in a case in which the court held that the
violent interrogation of a suspected terrorist is not lawful even if
doing so may save human life by preventing impending terrorist acts.
He said:
"Sometimes,
a democracy must fight with one hand tied behind its back. Nonetheless,
it has the upper hand. Preserving the rule of law and recognition of
individual liberties constitute an important component of its understanding
of security. At the end of the day, they strengthen its spirit and strength
and allow it to overcome its difficulties." Such restraint is at
the very core of democratic values.
It may be appropriate
to pose a question: Ought the British government to make plain publicly
and unambiguously its condemnation of the utter lawlessness at Guantánamo
Bay?
John Donne, who
preached in the Chapel of Lincoln's Inn, gave the context of the question
more than four centuries ago:
"No man is
an Island, entire of it self; every man is a piece of the Continent,
a part of the main; . . . any man's death diminishes me, because I am
involved in Mankind; And therefore never send to know for whom the bell
tolls; it tolls for thee."
Copyright ©
2003 the International Herald Tribune