When justice is truly blind

Nick Cohen August 4, 2002 The Observer

The war against terrorism has appealed to many a voyeuristic sadist with dirty-minded day dreams. He's a familiar type. There have always been 'public-policy intellectuals' who stare out of the office windows on lazy afternoons and yearn for hard men to be let loose. Democracy and the rule of law to these gentlemen aren't values which must be defended against Islamic fundamentalism, but luxuries demanded by soft dupes who are the unwitting allies of terror.

A casebook example of the intellectual as blood-lusting fantasist was offered by Alan Dershowitz, an American legal academic and defender of such dubious celebrities as OJ Simpson and Claus von Bƒlow. From the look of him Dershowitz is too podgy to torture anyone apart from the readers of his prose. Perhaps wisely in the circumstances, he suggested in the Los Angles Times that brawnier guys should be given 'torture warrants' by the courts and allowed to revive Spanish practices on the bodies of reticent suspects. They were going to be tortured anyway, he argued with the knowingness of a bluff cookie who's seen it all. Rather than condemn torture or ask for the torturers to be prosecuted, he declared that 'if we are to have torture, it should be authorised by the law'. Dershowitz received a dispiritingly large amount of respectful coverage in the States. The Bush administration never formally took up his ideas, but they were part of the intellectual climate which allowed the secret incarceration of foreigners in the US and the suspension of the Geneva Convention at Guantanamo Bay.

Neither can be excused as an understandable but transient overreaction to the slaughter of innocents. The suspension of civilised standards has become settled policy. Last week the US District Court ruled that the 600 prisoners in the US base in Cuba were beyond its jurisdiction. The detainees - who include two British citizens - had no right to a fair trial or access to lawyers. The judge's ruling was preceded by America's refusal to support a UN protocol against torture. Its diplomats feared international monitors would would use it to get past the guards at Guantanamo. The camp inmates' sole protections against torture are the honour of the US military and the odd visit from the Red Cross.

After re-reading Dershowitz, I had the unpleasant feeling that many in the US will be happy to know that the constitution they are meant to revere was powerless to test the evidence against the detainees and prevent assaults on prisoners. Back home no one has suggested torturing anyone. The 11 Arabs interned by Britain - the only other democracy to suspend habeas corpus after 11 September - received virtually no attention until last week's ruling by the Special Immigration Appeals Tribunal that their detention was unlawful. Yet in its own small way Britain has been as brutal as America, and as anxious to avoid scrutiny.

On the face of it, the accusation against the British detainees was sensational. The 11 were international terrorists in the bin Laden network. If they had been tried in a court of law, the press benches would have been packed. In 2000, when the greatest threat to Britain was the Millennium Bug, Parliament passed an anti-terrorism law which was far wider than anything on the statute book during the IRA campaign. Membership of a proscribed organisation could earn you 10 years in the slammer. Plotting the overthrow of a foreign government, however tyrannical, became a criminal offence. On these grounds Lord Byron and Charles de Gaulle were terrorists and the opponents of Saddam in the Iraqi National Congress's London offices are terrorists. (So, by logical extension, are George W. Bush and Tony Blair.) Al-Qaeda members, who want to overthrow every government in the world and establish theocratic tyranny, would have found the 2000 Act a hard rap to beat.

But the Government has chosen to prefer secrecy to open justice. We know the names of just two detainees. Jamal Ajouaju is a Moroccan who worked in London as a translator. He was picked up because he paid a prison visit to Abu Doha, an Algerian fighting extradition to the US to answer charges that he plotted an attack on Los Angles airport. As I mentioned the other week, Ajouaju doesn't look like an international terrorist. The emergency powers rushed through after 11 September have the peculiar provision that if an 'international terrorist' can find another country to take him, he's free to leave and, presumably, plot against Britain from abroad. Ajouaju said he had done nothing more than his job - translating documents for Doha. He would therefore return to Morocco, a monarchy which persecutes genuine Islamic militants. The Moroccans welcomed him home. The secret police said he was no threat to anyone. According to his lawyers, the British secret police appear to have taken a similar view. They didn't try to interrogate him either.

The other named detainee is Abu Rideh, a Palestinian who had travelled in Taliban-occupied Afghanistan and never made any secret of the fact that he was raising money for Afghan schools. He was a depressive who went mad when he was thrown into Belmarsh. The Home Office had to bully Broadmoor into taking him - the hospital for the criminally insane had qualms about locking up an unconvicted man. He is certainly suicidal, but whether he's a suicide bomber is another matter.

And that's it. The press wasn't interested until last week because it wasn't allowed to print the names of the other nine or find out what, if anything, they are meant to have done. Their lawyers weren't allowed to know the detail of the charges against them either. The presumption of innocence, independent legal representation and fair trial before judge and jury, were ditched along with habeas corpus and open justice.

You could, however, catch a glimpse of a shambles in the affidavits presented to the Special Immigration Appeals Tribunal in the days before it declared the holding of suspects in Belmarsh - Blunkett's Guantanamo - unlawful. One detainee is an Algerian who was arrested in 1997 and accused of supporting the GIA, a shady Islamic terror organisation which may well be a front for Algerian government agents provocateurs . The British courts didn't consider him a threat. He was on bail until the case against him collapsed in 2001. Since then, the Home Office told the tribunal, 'he has been maintaining a lower profile. Security Service [MI5] assesses that this will in part reflect that he has become even more security conscious since his arrest. However, he has maintained contact with a range of Algerian extremists in the UK'. In other words, the fact that he's stayed out of trouble means he is trouble. On this reasoning any law-abiding citizen could be in Belmarsh.

The internees have been held in conditions of great oppression. Gareth Pierce, the solicitor for many of the 'accused', said they were kept in solitary for 22 hours a day. Access to benefits and bank accounts was frozen. Their families faced eviction and destitution. Prison officers tried to stop them phoning their lawyers. Several, said Pierce, were the victims of torture in their native countries. The isolation and humiliation of life in a foreign maximum security prison has reopened old wounds.

The Home Office interned the innocent during the Second World War, Irish Troubles and Gulf War. From the little we know it looks that, in at least some cases, it's doing it again. Depressingly the tribunal didn't examine intelligence failures. It pretty much said that if the security services said X was a threat then X should be banged up indefinitely. It ruled that internment was unlawful because only foreigners could be interned - a discriminatory anomaly which, it hastily added, could be rectified if the Government interned British citizens. Even the Home Office may not dare go that far. In the meantime, the Arabs will stay in prison and try to hang on to their wits while it appeals.

I may be wrong. Maybe MI5 has got it right for once. If so the Home Office could make fools of its critics in an instant by bringing the internees before a court. It won't do that because, I suspect, it can't, and in its repetition of the American failure to hold on to basic principles in a crisis, the Government is undermining its own war effort.

Doubtless I'm an Islamophobic cultural imperialist but I don't believe it is difficult to prove that Western law is morally superior to sharia law or any of the oppressive internal security codes of the dictators and monarchies of the Middle East. I along with other optimists believe that Western values will eventually destroy both the religious and secular tyrannies in the region precisely because they have universal appeal. But I have to admit the greatest obstacle in the path of the glorious triumph of Western values is the policy of Western governments.