Reuters

Guantánamo: where rights are shackled

HAULED before a military tribunal at the American naval base in Guantánamo Bay, the detainee, picked up in Afghanistan, asked why he was being held. For associating with a member of al-Qaeda, he was told. Give me his name, the detainee demanded. The tribunal's president said he didn't know it. Nor did any of the tribunal's other members. “How can I respond to this?” the detainee cried before being taken back to his cell to continue his detention, perhaps for the rest of his life.

This Kafkaesque story was related this summer by Arlen Specter, the ranking Republican on the Senate Judiciary Committee, in support of a bill he and Patrick Leahy, the committee's Democratic chairman, were co-sponsoring to restore habeas corpus rights to Guantánamo's detainees. Most have been held for nearly six years without charge, without access to a lawyer or any indication of when, if ever, they might be released. The Pentagon has said they could be held for the duration of the (open-ended) “global war on terror”.

Guantánamo has become a byword for the Bush administration's gung-ho reaction to the terror attacks of September 2001. In Britain, too, the government has sought new powers to tackle Islamist terrorism, even if these seemed to offend ancient liberties. But the story is not over yet. It could turn into a tale not of liberties being frayed, but of democracy's underlying strength. For, in both America and Britain, the doctrine of the balance of powers has passed a test. The executive branch made a grab for more authority; but courts and legislators have tried hard to push back.

Freedom from arbitrary arrest and detention, coupled with the right to challenge it in an independent court—known as habeas corpus in common-law countries like Britain and America—are among the civilised world's most sacred and ancient liberties, going back to medieval times. But these days, there is more talk of pre-emption and “preventive detention”, even in democracies. “You can't allow somebody to commit the crime before you detain them,” said Condoleezza Rice, the secretary of state, when asked about America's secret “renditions” programme for suspected terrorists.

What the public safety requires

Under the American constitution, habeas corpus may not be suspended except when “in cases of rebellion or invasion, the public safety may require it”. And only very rarely has it been suspended. Abraham Lincoln did so during the civil war, but was rebuked by the courts. And the internment of 120,000 people of Japanese descent, two-thirds of them American citizens, in the second world war, was lawful but is now viewed as a shameful misdeed.

Britain likewise suspended habeas corpus in the second world war to allow it to detain around 1,000 suspected fascists. All were released after three years. During the “troubles” in Northern Ireland in the early 1970s, nearly 2,000 suspected extremists were interned. But the practice was scrapped in 1975, as it was clearly fuelling support for terrorism—just as Guantánamo is doing now.

George Bush chose the American naval base in Cuba as the detention centre for those picked up in his war on terror because officials believed—falsely as it turned out—Guantánamo was beyond the reach of domestic and international law. If the detainees had been held on American soil, they could have claimed the same rights as ordinary American citizens, including a right to due process, to apply for asylum and to sue the American government for any alleged wrongs.

From the outset, the 775 or so men and boys (some as young as 13) sent by Mr Bush to Guantánamo were branded as guilty. Donald Rumsfeld, the former defence secretary, described them as “hard-core, well-trained terrorists” who, if released, would simply “return to the fight and continue to kill innocent men, women and children”. The Pentagon says that all were “caught in the battlefield”. But many were given to the Americans by Afghan bounty-seekers; others were seized as far away as Bosnia and Zambia.

Mr Bush claims that, under international law, parties to an armed conflict may hold enemy combatants “for the duration of active hostilities”. This is correct. Nor is “unlawful enemy combatant” a term he invented. In the Geneva Conventions, it describes a foe who is not a member of official armed forces or an organised resistance movement, does not carry arms openly, wears no uniform or other distinctive sign, and refuses to heed the laws of war. As such, he fails to qualify for the rights of a prisoner of war. But, contrary to what the administration first claimed, he is entitled to some protections, including humane treatment and, if charged, to a fair trial by a “regularly constituted court”.

But is America's war on terror a real war in the legal sense? If not, then the detainees should be treated as ordinary criminal suspects. This is the path that most European countries have chosen. Even if it could be deemed a real war, it is clearly unlike an ordinary state conflict: it has neither a definable end nor even an identifiable enemy with whom to sue for peace. It could last for decades.

Meanwhile, dozens, perhaps hundreds, of detainees are apparently to be left to rot in their cages—if not in Guantánamo, which Mr Bush says he wants to close—then somewhere else. America has also engaged in so-called “extraordinary rendition”—the abduction of suspected terrorists to face not justice, but harsh interrogation, perhaps torture, in a third country. Up to 100 nameless “high-value” suspects are believed to have been seized by CIA agents and then transferred to secret jails, some never to resurface. Around 15 have recently been transferred to Guantánamo, where they may or may not face trial. But most of the 330-odd detainees remaining at the camp may never be charged or tried. The Pentagon says it hopes eventually to put up to 80 detainees on trial for war crimes by special military commissions. Even if acquitted, they may still be held as enemy combatants for the rest of the “war”.

In Britain, all renditions have been outlawed since a Court of Appeal ruling in 1999 overturned the conviction of an Irish Republican, Peter Mullen, who had been spirited back to Britain from Zimbabwe. His abduction was described by the court as a “blatant and extremely serious failure to adhere to the rule of law”.

Britain has eroded liberties in other ways. Immediately after the September 11th attacks, the government brought in a law allowing it to hold indefinitely and without charge any foreigner deemed a national security risk—on the simple say-so of the home secretary. To do this, it had to opt out of parts of the European Convention on Human Rights, as is permitted “in time of war or other public emergency threatening the life of the nation”. None of the 45 other signatories has deemed such a step necessary.

Belmarsh prison in London, where most terror suspects were held, was dubbed “Britain's Guantánamo”—a bit unfairly. Britain never claimed to be in the midst of a war or to be holding “unlawful enemy combatants” with no legal rights. Its foreign detainees, totalling no more than 18, always had access to a lawyer and could challenge their detention before an independent tribunal, though they were not allowed to see classified evidence against them. The government said they were not being held indefinitely, just awaiting deportation. But as they could not be sent to their own countries (because they might be tortured), and no other state wanted them, the effect was the same.

The law lords say no

In December 2004 the House of Lords, Britain's highest court, judged this system to be incompatible with the European Convention. For Lord Scott, one of the law lords involved, indefinite detention on undisclosed grounds was “the stuff of nightmares”, reminiscent of a Stalinist regime. The law was duly scrapped. But it was replaced by new powers allowing the home secretary (not a judge) to impose an indefinitely renewable “control order”—including electronic tagging, a ban on phone and internet use, and strict curfews amounting at times to virtual house arrest—on any suspected terrorist, British or foreign.

The new system seems as riddled with problems as the old, and almost as unfair. In its latest report on control orders, in September, the Home Office said three of the 14 people subject to the regime had absconded. Several people have had their orders quashed by judges who again found the measures incompatible with the European Convention. The government has appealed to the House of Lords, which is expected to pronounce later this month.

In the final months of Tony Blair's government, ministers said they were prepared to “take the nuclear option” and opt out of the convention again if the law lords' ruling went against them. That threat has not been repeated by the new prime minister, Gordon Brown. But he may yet try similar moves. He has already announced plans for a new anti-terrorist law—Britain's fifth since 2000. Among his proposals is an extension of the maximum time a suspected terrorist can be held without charge from 28 days, already the longest in the West, to 56 days. Most democracies allow no more than three days. France permits four; Greece six.

But no leader of a Western democracy has obtained a completely free hand in detaining people. America has seen a tug of war between the government and the courts, with many rounds. In June 2004, the Supreme Court ruled that habeas corpus remained available to everyone detained on American soil, unless explicitly suspended. The case involved Yaser Esam Hamdi, an American citizen being held as an unlawful enemy combatant on a naval brig in Virginia. Two years later, in a case involving a Guantánamo detainee, Salim Hamdan, the Supreme Court said the basic protections afforded to all wartime detainees under the Geneva Conventions applied to everyone, even to unlawful enemy combatants outside America.

The court also ruled that Mr Bush had exceeded his authority in setting up, without congressional approval, special military commissions to try some of the Guantánamo detainees. In response, the president pushed through the 2006 Military Commissions Act giving him just such authority. That law also stripped Guantánamo detainees of any vestige of habeas corpus rights, with retroactive effect. This seemed to dash the hopes of hundreds of Guantánamo detainees with challenges pending before American civilian courts. In April, that view appeared to be confirmed when the Supreme Court turned down, without comment, a habeas corpus petition from the above-mentioned Mr Hamdan. But in June it relented, agreeing to hear an almost identical case from another Guantánamo detainee. Many hope the Supreme Court will seize this opportunity to give a view on whether Mr Bush's “war on terror” is a real war.

The legislators strike back

Congress, too, is beginning to show its teeth, particularly now it is under Democratic control. Although Senator Specter's bipartisan bill to restore habeas corpus rights to Guantánamo detainees fell to a Republican filibuster on September 19th, it got the support of 56 senators, including four Republicans. Other bills pending before Congress seek the total closure of Guantánamo with the transfer of the detainees either to their home countries, if they do not present too big a threat and if those countries are willing to take them; or to a military prison in America.

In Britain, too, Parliament has baulked at some of the government's demands. In 2005, when Mr Blair sought to push through a bill raising the time a suspected terrorist could be detained from 14 to 90 days, his backbenchers revolted, eventually settling on the compromise of 28 days, with regular judicial oversight. Some British officials have been looking with envy at civil-law countries like France, where the criminal-justice system allows detention for months, even years, after a suspect has been formally “placed under investigation”, but not yet charged. Police can also continue to interrogate suspects during that time.

But most legal commentators believe that if the French model were copied in this area, an unbearable blow would be dealt to England's common-law system. And despite the fears of civil libertarians, there are still judges and legislators who think that system worth preserving.