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Detainee Rights: A Step Forward in the U.S., Back in the UK

Resource type: News

Gara LaMarche |

Last week was a dramatic one, on both sides of the Atlantic, in the battle to preserve fundamental human rights against the recent disturbing tendencies of two of the world’s leading democracies to invoke fear of terrorism to claim extraordinary and excessive powers. In the United States, the Supreme Court ruled in Boumediene v. Bush, by a narrow 5-4 majority, that the foreign nationals held in U.S. prison camps at Guantánamo Bay have a right to pursue habeas corpus challenges to their detention. In the United Kingdom, Parliament approved Prime Minister Gordon Brown’s proposal to increase the lawful period for detention without charges from 28 days (which is unacceptable to begin with) to 42. Atlantic’s grantees have been on the front lines of the struggle to preserve fundamental human rights in these cases and campaigns.

“The Bush Administration’s system of injustice is starting to crumble,” declared Jameel Jaffer of the American Civil Liberties Union, which filed a friend-of-the-court brief in Boumediene (see link below). At issue in the case was whether the now-270 detainees at Guantánamo, some of whom have now been held for six years without charge or trial, can be denied any meaningful right to challenge the legality of their imprisonment. Justice Anthony M. Kennedy wrote for the court, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

Against these stirring words was the acid dissent of Justice Antonin Scalia, fanning the rhetorical flames even more than usual:“The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.” Distressingly, given his earlier record of opposition to torture and other human rights abuses of the Bush Administration’s post-9-11 policies, and signalling that basic human rights guarantees could become a “wedge” issue in the Presidential campaign, Senator John McCain called the decision “one of the worst decisions in the history of this country.”Going one better, former House Speaker Newt Gingrich called Boumediene “worse than the Dred Scott decision,” the notorious 1857 Supreme Court ruling that held that slaves could not be citizens or sue in court, and that Congress could not prohibit slavery in federal territories – that, in short, that slaves were “inferior beings” who had “no rights that the white man was bound to respect.”

It’s perverse to compare Boumediene, in which three of the Justices in the five-person majority were appointed by Republican Presidents, with Dred Scott, when the historical analogy is precisely opposite. The Administration argued that the human beings at Guantánamo had no rights the U.S. was bound to respect, and the Justices properly and courageously drew the line. But that a prominent political figure could make that comparison with a straight face shows just how much work there is to do to restore the damage done by the abuses perpetrated and tolerated by the United States in the last seven years.

The Center for Constitutional Rights, another key Atlantic grantees, has been sending habeas counsel to represent the prisoners at the base since winning the first Guantánamo case, Rasul v. Bush, in 2004, and has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantánamo, ensuring that nearly all have the option of legal representation. The Center was co-counsel in Boumediene, and you can read more on its website.

“The Supreme Court has finally brought an end to one of our nation’s most egregious injustices,” said CCR Executive Director Vincent Warren. “By granting the writ of habeas corpus, the Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding. With habeas you never would have had these men—so many of whom have been cleared of any wrongdoing—locked up and abused because no court was watching. In those cases, the government will now have to put up or shut up: it will have to show an impartial judge enough evidence to justify detention. This six-year-long nightmare serves as a lesson in how fragile our constitutional protections truly are in the hands of an overzealous executive.”

The Boumediene decision marks the third time the Court has rebuked the administration’s lawless actions at Guantánamo. The government has repeatedly delayed in applying previous rulings.

In Britain, the rights of detainees did not fare so well in the political process.

The government pulled out all stops to win the vote, which became in Prime Minister Gordon Brown’s view a critical test of his fading political viability, and the margin of success in the razor-thin vote was provided, ironically, by the Democratic Unionist members from Northern Ireland.

Though Atlantic no longer maintains a funding program in the U.K. outside Northern Ireland, we thought it important to support the opposition to Prime Minister Brown’s plans when he announced them last summer, because any incursions on basic rights of detainees in Britain, as in the U.S., will be cited and copied by repressive regimes around the world as a justification for their own abuses. We provided a grant to the British civil liberties group, Liberty, which fought a valiant campaign, “Charge or Release,” against the measure. You can read more on Liberty’s website.

I was in London the day after the vote in Parliament, and visited the rabbit-warren-like offices of Liberty, whose tenacious and eloquent Director, Shami Chakrabarti, paid tribute to “the brave parliamentarians of all stripes who held their nerve against the pressures of party politics and the terrorists’ attempts to provoke us to abandon our values.” Fielding calls from the media and urgent messages from staff and allies, Chakrabarti lamented that “recent years have shown how forgetting Britain’s moral compass has left our country less safe; so on to the House of Lords—once more the guardian of fundamental rights.”

Liberty’s aggressive and creative fight against the proposed law demonstrated that the government had offered no evidence for extending what is already the longest pre-trial detention period for terror suspects in the western world, not “a single instance in which an investigation has failed because they ran out of time.”They won the battle of public opinion, if not yet the vote.

A surprise development the day after the vote was the resignation from Parliament of Tory Shadow Home Secretary David Davis, forcing a by-election that could be a referendum on what he called “the insidious and relentless erosion of civil liberties in Britain.”

Atlantic will continue to support Liberty in its campaign to stop the 42-day detention plan. In the U.S., we have joined with the Open Society Institute and other funders to build on the heroic work of advocates during the last seven years in a coordinated campaign to use the coming election and transition to reconstruct core civil liberties and restore proper limits on executive power. All over the world, no matter what the fears and pressures, no matter how unpopular the victims or how disturbing the crimes of which they may be suspect, there must never be anyone whose rights we are not bound to respect.

Gara LaMarche

Links to organisations mentioned in this column: