26 June 2004
Two cheers for the Attorney General. His robust rejection of the military tribunals proposed for Guantanamo Bay deserves support from everyone who values their civil liberty. The equality of all citizens before the law is a right which protects each of us against arbitrary and oppressive use of the law. The denial of that right to the British citizens held at Guantanamo Bay is, therefore, not merely an injustice to them but a matter of concern to everyone who shares their right to a fair trial if accused.
But a much broader response is required from the British Government to the sustained assault by the Bush administration on international legal standards. The militarisation of the trial of the detainees at Guantanamo is after all only a logical extension of their confinement for two years in a military camp with no due process of law. It is illogical to protest that the specific procedures for their trial are unacceptable without condemning the wider contempt of the Bush administration for its obligations under international law.
The reams of legal documents that have seeped out from the Pentagon and the White House paint an alarming picture of an administration that believes it is not really bound by international conventions prohibiting abuse of prisoners. One expression of advice from the Pentagon's own lawyers concludes that "criminal statutes are not read as infringing the President's ultimate authority" and that therefore the President has the "inherent constitutional authority to sanction the use of torture". Not surprisingly the document was classified by Rumsfeld's office as "not for foreign eyes" as it is unlikely that the foreign lawyer has yet been born who would have come to the same conclusion as those lawyers cleared by the Pentagon. What after all is the point of the rest of the world negotiating international conventions with the US if their President retains the authority to suspend its application? Conversely what would be the opinion of those Pentagon lawyers if the heads of state of Russia or China claimed the same authority to set aside their agreements with Washington?
Two considerations appear to have impelled the Bush administration to this novel and eccentric doctrine of the partial applicability of international law. The first is that a belief in American exceptionalism is a core ideological tenet of the neo-cons who permeate this administration. Note that the inherent authority that is claimed for the President to suspend international obligations is ascribed to his status in the US constitution. It is intrinsic to the neo-Con presumption of US supremacy that it should appear natural to them that the US constitution should take legal primacy over the Geneva Conventions.
This belief not only betrays a contempt for international opinion, but also an ignorance of the long, honourable tradition of America in seeking to secure and uphold agreements to international norms of humane treatment. It is not surprising that one of the internal documents to have surfaced contains an angry protest from Colin Powell that in abrogating to itself the right to breach international conventions, the administration was adopting an approach that "reverses a century of US policy".
The second justification the administration offers to itself for departing from international legal norms is that it is engaged in a "war on terror". The phrase "war on terror" may work as a vibrant metaphor for the energy required to defeat terrorism. Unfortunately many in the Bush administration have approached it with an all too literal mind and cast themselves as the heroes of a real war. One malign consequence is that they have deluded themselves that indiscriminate deployment of military force will defeat the terrorists rather than provoke more support for them. Another is that they believe they can suspend peacetime procedures by invoking the wartime authority of the President as Commander in Chief.
Not surprisingly, the forced reasoning required to conclude that the US is not bound by agreements it nevertheless expects others to honour results in glaring inconsistencies. Thus the fact that the nation is at war is deployed to justify the President's authority to sanction improper treatments of detainees, but paradoxically the fact that those same detainees are not classed as prisoners of war is used to deny them the protection of the Geneva Conventions.
Last week the Pentagon claimed that the documents it had released proved that the administration had not condoned torture. Closer inspection revealed that this claim stood up only if one subscribed to their own extreme definition of torture. The documents did confirm that they had approved methods of maltreatment that only Torquemada would have regarded as soft and any reasonable person would have recognised as cruel and inhumane punishment. The techniques which were authorised included hooding detainees, stripping them naked, intimidating them with dogs and keeping them in stress positions. Those same techniques have now surfaced in different islands of the new Rumsfeld Gulag, from Guantanamo to Abu Ghraib to Kabul. It is simply inconceivable that such common practices could appear on different sides of the globe without central approval and direction.
Brigadier Karpinski, the commander of Abu Ghraib, has provided a succinct insight into the attitude towards detainees of General Miller, the commanding officer of Guantanamo: "They are like dogs. If you allow them to believe they are more than dogs you have lost control." She also has come up with the most likely explanation of the origin of the Abu Ghraib photo albums. It appears to have been standard procedure of military intelligence to photograph the humiliation of the detainees to blackmail them into co-operation for fear of exposure to their families. Astoundingly no one seems to have grasped that photographs that would shock wives and mothers in Baghdad would have the same effect on women across the West if they ever surfaced in public.
Al-Qa'ida is a malign organisation with a poisonous ideology of religious hatred. But we have fought evil ideologies in the past without abandoning our own commitment to justice and decency. Are the crimes of Osama bin Laden, however vile, really any worse than those of Hitler? Yet throughout the Second World War we treated prisoners and citizens humanely. We must not ourselves do the work of the terrorists by destroying our own values of humanity and justice.
Sir Peter Goldsmith is therefore right to insist on a fair trial for the Guantanamo detainees. But the bigger picture of systemic breach by the Bush administration of international norms needs to be addressed by his other colleagues in government. Last month The Atlantic magazine ran an editorial lamenting that Britain had let down Americans by supporting the Bush agenda when what they needed was "a candid friend, brave enough to tell the all-powerful one when it was in error". Tony Blair could usefully demonstrate he has taken that advice to heart by warning George Bush that in undermining international law he is undermining the international standing of both the US and its close allies such as the UK.