Political expediency and the basic principle of a fair trial


The Independent

26 June 2004

It is gratifying to learn that the Attorney General, Lord Goldsmith, believes there are certain judicial principles that cannot be compromised. Gratifying, too, that he includes the right to a fair trial in this category. Are these not precisely the sort of judicial fundamentals that the Government's senior law officer is appointed to uphold?

But we draw particular satisfaction from hearing Lord Goldsmith apply this reasoning to the plight of those detained by the US authorities at Guantanamo. Speaking yesterday, he said that Britain's refusal to compromise on this principle of a fair trial was why Britain had been unable to accept the military tribunals proposed by the US authorities for the Guantanamo detainees.

What is extraordinary, given that the second proposition follows so logically from the first, is that it has taken this eminent lawyer so long to draw the connection so definitively in public. To be sure, we have heard something like this general principle expressed by him before. And we have heard the Foreign Secretary, Jack Straw, insist that the military tribunals, as proposed by the US authorities, would not provide "the process which we would afford British nationals". But yesterday was the first time that we had heard the Attorney General use the full weight of his office to declare the military tribunals unacceptable.

This is, of course, a welcome development, and one that means there can, at last, be clarity between Britain and the US on the fate of the Guantanamo detainees, even if it is clarity of disagreement. But what took him so long? It is more than two years since nine British citizens were airlifted from Afghanistan to Cuba, in a move that lacked any authority whatsoever under international law. Justification was questionable even under US law; a ruling is awaited from the Supreme Court. Five Britons have since been released, but four remain, two of whom have been listed among the first likely to face a military tribunal.

Lord Goldsmith has spent months of his valuable time shuttling between London and Washington, trying to negotiate an acceptable solution. And initially, perhaps, when there was still hope that all nine Britons would be released, discretion was the wiser course. Since the five were released, however, there has been no excuse for the Attorney General, or anyone else in the Government, to keep silent. Were Britain holding even one US citizen under similar circumstances, we can well imagine the outcry from across the Atlantic.

The detention of more than 600 prisoners at Guantanamo, without charge or trial and effectively without rights, is an offence against all the judicial fundamentals invoked yesterday by Lord Goldsmith. But it has been from the start. It is tempting to conclude that what has changed is not Lord Goldsmith's regard for the law, but the political climate. Now that Mr Blair and his ministers consider it politic to distance themselves from President Bush, the Attorney General has finally denounced the iniquities of Guantanamo. If the principle of a fair trial is sacrosanct - as it is - it should never have been shrouded in silence for the sake of political expediency.