At Last, Precedent

By Adam Goldenberg

On December 16, 2004, the House of Lords, Britain’s highest court, ruled that the British government’s indefinite detention of terrorist suspects under its Anti-Terrorism, Crime and Security Act is unlawful, effectively putting the kybosh on a significant part of what was the U.K. government’s strategy for dealing with any foreigner who poses, in the words of the legislation, “a risk to national security, and has links with an international terrorist group.”

Directly affected by the ruling will be the 11 North African Muslims detained by Britain, some for up to three years, mostly at a maximum security facility in south London. The government now must either charge the prisoners—which will require sensitive information to be aired in open court—or release them. The importance of the ruling, however, goes well beyond the fates of these 11 suspects: It constitutes a substantial piece of international legal precedent on the question of indefinite detainment for suspected terrorist links, one that ought to have extraordinary consequences for the way all countries involved in the “war on terror” deal with detainees.

In particular, the ruling ought to make other nations, especially the United States and (believe it or not) France, sit up and take notice, especially as the American legal proceedings stemming from the prisoner abuse at the Baghdad Central Confinement Facility at Abu Ghraib get increasingly underway

The exceptions from legal protections claimed by the U.S. vis-à-vis its terror suspects are, by any measure, much more substantial than those taken by the British (the ones recently found to be untenable and unlawful). Although the U.K. “opted out” of Article 5 of the European Convention on Human Rights (which enshrines the right to liberty) in passing the Anti-Terrorism, Crime and Security Act, the U.S. has denied terror detainees, most notably at the Guantánamo Bay Naval Base in Cuba, both rights guaranteed by the U.S. Constitution and the protections of International Humanitarian Law guaranteed by the Geneva Conventions. The difference between these countries’ provisions is, at once, simple and frightening: while the British made an exception that allowed them to hold prisoners indefinitely, the U.S. further denied those indefinitely-held prisoners basic rights, resulting in today’s emerging horror stories of gruesome prisoner abuse.

U.S. Army Specialist Charles A. Graner Jr. was sentenced last month to 10 years in prison for his role in the outrages against human dignity inflicted on Iraqi detainees at Abu Ghraib. Over the course of Graner’s trial, the prison guard painted a macabre picture of superiors’ instructing their subordinates to torture prisoners in violation of international law, of “ghost detainees being held without documentation to avoid their being examined by the International Red Cross, and of Army Rules of Engagement that instructed guards to follow a frightening escalating sequence of coercive tactics in their dealing with prisoners: ‘Shout, Shove, Show [a weapon], Shoot.’” Perhaps as frightening as the treatment of these prisoners is the approach taken towards them by the U.S. military: these are not prisoners in any ordinary sense of the word; they are, rather, detainees, held in deprivation of the very liberties America purportedly invaded Iraq to restore without even the protection brought by the designation “prisoner.”

The House of Lords’ ruling, made in an 8-1 decision by nine sitting Law Lords instead of the usual five (only the second time a bench of such a size has sat since the World War II), identified an especially salient moral wrong inherent in the unlawful detentions. Lord Nicholls, one of the judges, said, “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford.” Certainly this applies in the United States, which shares a common legal tradition with its former colonial master.

None of this is to say that the United States, Britain or any country should not take definite steps to protect itself from the specter of terror. But, as has been argued so frequently since the attacks on America of September 11, 2001, casting aside the very values, protections and rights that make America “great” in the name of national security ultimately causes two deleterious effects. First, it costs the U.S. credibility in a world where international opinion is already largely against U.S. policy and where, with the House of Lords rulings, there is a growing body of law that contradicts American actions. Second, it cedes a degree of victory to the terrorists who attacked the U.S. in the first place.

The current U.S. administration, and likely any other U.S. administration, will not change course on account of the House of Lords’ ruling. American thinking is so fiercely against submission to any foreign legal authority (witness the International Criminal Court) that such a change is unthinkable. But the ruling must, and likely will, be used to support the argument that the American approach is wrong and even illegal. One can only hope that the Lords’ ruling will be a wake-up call for an American administration too widely viewed as arrogant and negligent.

As for the assorted terror suspects and “enemy combatants” held in limbo by the United States, there’s little more for one to do than hope that they will be brought to justice and held to account for their loathsome actions, but in a manner consistent with the enlightened form of justice embodied by international law and envisioned by the framers of America’s constitution.

Adam Goldenberg ’08, a Crimson editorial editor, lives in Grays Hall.