by Victoria Brittain
In the High Court last week for two days, a face of British justice was on show that damages us all in the wider world these lawyers seem not to know. The key government lawyer told the court considering a request for the return to Britain from Guantanamo Bay of three Muslim men, “this is not a question of what is morally right or wrong.” This was news to the men’s families, as they had all fled to Britain decades ago precisely because they believed in British justice.
Tomorrow, in that other chamber of the British establishment, the House of Commons, the same story of the two British families whose husbands, brothers and sons are still in Guantanamo Bay will be told to the Foreign Affairs Committee - another group who should have leverage over the Foreign Secretary to urge him to make a moral gesture so these agonised people can come home.
The half a dozen Treasury solicitors and barristers in Court number 2 last week, with their mountains of files, could well have come out of Charles ****ens’ incomparable mocking of the legal profession in Jarndyce and Jarndyce. But Bleak House was not a tragedy like this one.
In one of the two cramped rows of benches behind the lawyers sat a wife, a mother, a sister, and two brothers, of the three Muslim men held at Guantanamo Bay for more than three years. Most of the relatives are British citizens, and their lawyers were asking the court for an order that the Foreign Secretary request their release from Guantanamo and return to Britain – where one of them has five small children. (link guardian.co.uk/Guantanamo).
Two of the men, Iraqi Bisher al Rawi and Palestinian Jamil el Banna, are friends, seized on a business trip in the Gambia, the third, Omar Deghayes, is a Libyan, sold by bounty hunters in Pakistan.
Minutes before the hearing, news came through that Jack Straw had changed his mind and was now willing to approach the US for just one of the men, Bisher al Rawi. “Why is one different, when they were friends and were captured together?” For the other two families, though they were very happy for the Al Rawis, it was yet another shock, a moment of deep disappointment, and complete bewilderment.
“Why do they play with my life like this, they look as though they are just playing with me, and with my children’s lives,” said one of the women, after listening to a day’s legal argument about whether there has been torture in Guantanamo Bay, whether her husband can be said to be at risk of torture,(link cageprisoners.com) whether the US has a different definition of torture from the UK, whether as he was a refugee in the UK there is a duty for the country to protect her husband, whether the suffering of her and her children can be weighed against Britain’s foreign policy imperatives.
For a full day and half the next morning, the barrister for the three families, Tim Otty, laid out a case supported by innumerable ring binders of material. Reports from the United Nations Rapporteurs last month, the International Committee of the Red Cross, Amnesty International, Human Rights Watch, civilian lawyers who have visited the camp, telling the now well-known story of the appalling suffering in Guantanamo, and the “compelling evidence of torture,” were in the two judges’ ring binders. And references to the opinions and writings of some of Britain’s most distinguished law lords, Lord Bingham, Lord Hope, Lord Steyn, on some of the worst aspects of Guantanamo – the legal black hole in which the prisoners find themselves, the shaming “authorised practices,” were given to the two judges. Mr Otty spoke of the likelihood that, without Mr Straw’s intervention, the men will remain “arbitrarily detained and at risk of torture, inhuman or degrading treatment indefinitely until the United States authorities declare the War on Terror to be at an end.”
The long story of four years of unsuccessful attempts by the families’ lawyers to persuade the UK government to intervene in these cases as well as those of the nine British nationals who were released in 2004 and 2005, had ring binders for themselves of letters sent by their solicitors to various branches of government.
Mr Otty took the court through the protection of the families and the three men due under the Human Rights Act, the UN Refugee Convention, the Convention on the Rights of the Child, and the Council of Europe directive that European countries have a duty to bring any residents back from Guantanamo. He quoted the House of Lords’ ruling against the use of torture, and Lord Bingham on how states are obliged to pre-empt the perpetuation of torture.
To the families it sounded as though a great volume of Human Rights Law was firmly on their side. To a non-lawyer it sounded like an unanswerable case. It was impossible to gauge what it sounded like to Lord Justice Latham and Mr Justice Tugendhat.
The government barrister said that he expected to speak in response for no longer than an hour or so on the second day, and it was agreed that the case would not take the estimated three days, but finish in two.
The atmosphere changed with the opening remarks of the barrister laying out the government’s case against the court making the order to the Foreign Secretary to get the men home. He was the well-known professor of international law at the London School of Economics, Christopher Greenwood CMG, QC. (Professor Greenwood is perhaps best known in non-academic circles for his opinion that the war against Iraq had a legal justification, in sharp contrast to the views of a large number of distinguished academics and lawyers that it did not.)
Professor Greenwood’s case here, in short, was that the court can not enter the foreign policy arena – it is a “forbidden area.” The court, he said, could not second guess the Foreign Secretary. He went on to say that any approach by the Foreign Secretary to the US to free the three men and send them home would not succeed, and indeed it would be counter-productive, offending the UK’s valued ally. This seemed very odd, as it is a matter of record that the US government is keen to close Guantanamo, has been discussing this very question with the UK, and would therefore presumably be happy to be shot of eight inmates.
David Richmond, the Director-General of Defence and Intelligence at the Foreign and Commonwealth Office, Witnesses A and B, two unidentified Security Service officials were the big hitters in Professor Greenwood’s case. Secret evidence of national security concerns, and mandarin talk, did not impress the families. The test will be what Lord Justice Latham and Mr Justice Tugendhat made of it.
Mr Richmond saw off the torture question with the calm assurance that, “The UK government attaches weight to US government investigations of alleged mistreatment of detainees….and considerable weight to public and private assurances from the US government that no torture is being practised at Guantanamo.” He “took careful note” of the UN Special Rapporteurs’ concerns, but observed that it was very difficult to assess what was going on in the camp because of lack of access. The FO knows however that numerous US lawyers have written about the pitiful condition in which they find their clients in Guantanamo, especially since the hunger strikes of the last six months. They know too, like everyone else who is paying attention, that US authorities have tortured men in Guantanamo, in Bagram, in Abu Ghraib, and routinely used cruel and degrading treatment. None of the white-wash official reports carry any credibility. Heavy books have been written by legal authorities in the US about where the authority for all this comes from. It is from a higher level than Mr Richmond.
Lord Justice Latham said at one point, “I feel this case ….all the material points to an on-going situation which we in this court could help to end, help the Secretary of State to a conclusion…it might have a practical role to play – forget legalities.”
As the two judges left, to read their ring binders and consider the copious notes they had taken over two days, the families went home to small children who have learned to play judges and prisoners, and to elderly mothers too distraught to be able to come to court. Before the case, some families were confident that justice would be swift and the men really would be home soon, as they had so often said, to keep the family spirits up. Noone dared to be optimistic after hearing Professor Greenwood speak.
But at least they did not have to hear Justice Antonin Scalia of the US Supreme Court Scalia ahead of a important test case this week dismiss the idea that the detainees have rights under the US Constitution or international conventions, adding he was "astounded" at the "hypocritical" reaction in Europe to Gitmo. "War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts," he says on a tape of a talk reviewed by Newsweek. "Give me a break." (link Newsweek 3 April issue www.truthout.org/docs
SOURCE: CommentisFree, The Guardian