Two hundred and seventy people convicted of no crime languish in
Guantanamo, and the British parliament has just voted to extend
detention without trial to 42 days. In both the United States and
Britain, governments that attack civil liberties in the name of
security still rule. But in the past week the tide has turned in both
In the United States, the Supreme Court has ruled for the third time in
four years that the people detained in Guantanamo can challenge their
imprisonment in US civilian courts. When the Court made the same ruling
in 2004 and 2006, an obedient Congress passed legislation overruling
it, but that will not happen this time.
The Supreme Court judges have ruled once again that the ancient rule of
habeas corpus, the right of every prisoner to be brought before a court
where the state must give a legal justification for his detention,
cannot be thrust aside on the pretext that the suspect is a foreigner,
or a terrorist, or an “illegal combatant.” The
government still has to convince a judge that it has the evidence to
justify the charge, and then bring the accused to trial.
With Democratic majorities almost certain in both houses of Congress
after the November elections, and both presidential candidates
committed to shutting Guantanamo, this time the Supreme
Court’s ruling will stick. As Justice Anthony Kennedy put it,
"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."
The rule of law is returning in the United States after years of abuse.
In Britain, it is still under attack, but the fight back has started in
earnest. After Prime Minister Gordon Brown forced through the 42-day
detention law on Wednesday despite the resistance of both major
opposition parties and 36 rebels from his own Labour Party, something
David Davis, the Conservative MP who serves as shadow home secretary
(the opposition spokesman on domestic affairs), resigned his seat the
following day. He declared that he would run for re-election on a
platform of opposition to the “monstrosity” of
42-day detention and to the "government's slow strangulation of
fundamental British freedoms."
The Great British Public, it must be admitted, is not very interested
in fundamental British freedoms. As Gordon Brown pointed out in defence
of his law, a majority of the public supports 42-day detention.
Indeed, a majority of the British public, given the right lead by the
gutter press, would probably also support 90-day detention,
waterboarding of suspects, 180-day detention, torture of their
relatives, 360-day detention, and summary execution of detainees.
Provided they were Muslim, of course.
But democratic countries have laws and constitutions precisely to fend
off this kind of ignorant populism. David Davis is acting in defense of
habeas corpus, and when the voters of his constituency are forced to
confront the issue of human rights squarely they will probably
Former prime minister Tony Blair began the attack on civil liberties
even before 9/11. British citizens, who could previously be held by the
police for only two days before being charged or released, found that
period raised to seven days by the Terrorism Act of 2000, and to
fourteen days by the Criminal Justice Act of 2003.
A significant minority of his own party rebelled when Blair tried to
extend it again to ninety days in 2005, and after much haggling it was
fixed at 28 days – already the longest period of pre-charge
detention in the democratic world. So what possessed Gordon Brown to
want to lengthen it yet again, given that there had been no request
from the security services and no recent terrorist atrocity?
Political expediency, of course. Brown’s unchallenged
succession to Blair as prime minister is already seen as
Labour’s great mistake, and it is almost universally assumed
that the Conservatives will win the next election in less than two
years’ time. So Brown cast around for some symbolic gesture
that would wrong-foot the Tories, and came up with 42 days: paint
himself as tough on security, and force the Conservatives to choose
between defending unpopular civil liberties or playing me-too.
The Conservatives decided to oppose the legislation, although with some
misgivings. (Indeed, David Davis’s spectacular action is
partly intended to nail own his party to its commitment to kill the 42
days when it comes to power.) About 50 Labour MPs were initially
prepared to vote against their own government, although various
pressures reduced that to 36 for the final vote.
The law squeaked through last Wednesday by a majority of only nine
votes – thanks to nine Democratic Unionists from Northern
Ireland who agreed to support Brown in return for large sums of money
spent in that province. Brown is weakened by this vote, not
strengthened, and the ugly law he has pushed through the House of
Commons will almost certainly die in the House of Lords (as he knew all
along – it was only done to make him look “tough on
In both of the countries where civil liberties were most grievously
damaged by the “war on terror,” the tide is
turning. About time, too.
Gwynne Dyer’s new book, After Iraq, was
recently published in London by Yale University Press.