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Wigs of Mass Destruction

OH dear. Just when Bush and Blair thought the worst was over in Iraq, and suddenly they are fighting on an entirely new front. And this time they’re up against an opponent who is a lot tougher than Saddam’s Republican Guard: the law.
Wigs of mass destruction are raining down on Number 10 and the White House as the courts rule that their conduct, from Guantanamo Bay to Belmarsh, is unlawful.

The US Supreme Court has told George W Bush his treatment of detainees in Cuba is contrary to the Geneva Convention. Meanwhile, in Britain, a judge last week ruled house arrest of terrorist suspects under the Blair government’s control orders is illegal under the Human Rights Act. Which is unfortunate, because it was Tony Blair’s government that introduced the HRA.

Now, neither ruling means that the government will be throwing open the doors of Belmarsh and Guantanamo, at least not yet. But this represents a serious double blow to the moral authority of both governments, and the war in Iraq. After all, isn’t the rule of law what we are meant to be fighting for? If we don’t treat prisoners decently and in accordance with international conventions, how can we lecture tin-pot dictators about their maltreatment of their own citizens? You can’t fight a police state by setting up a police state – and that is what many senior legal figures fear is what the government is creating in Britain by default.

This new willingness of the judiciary to hold the US and UK governments to account will have serious implications for the war on terror. Practices like rendition of terrorist suspects for interrogation in countries that practise torture are almost certainly illegal under the Geneva Convention, it only needs someone to test it in court.

Such “torture by proxy” is, anyway, morally indefensible. As is maltreating prisoners in Abu Ghraib, or Guantanamo Bay, or using interrogation techniques such as “waterboarding” – where a detainee is strapped down, dunked under water and made to believe he might be drowned – which the CIA doesn’t define as torture, but every civilised person would.

Last week was the second time that the British government has been in the dock over Belmarsh. The House of Lords ruled last year that detaining terrorism suspects without trial or charge was illegal, and the government had to change the law to get the power to issue house arrest control orders as an alternative to detention. But it hasn’t satisfied m’learned friends.

Tomorrow the pugnacious new Home Secretary, John Reid, will be in court trying to overturn last Wednesday’s ruling by Mr Justice Sullivan on control orders. “Judge” Reid’s made clear he’s no’ huvvin’ it, and that the judges will have to sort themselves out or be sorted out.

Certainly, the ruling could hardly have been more provocative. It was like saying “thanks to the government’s own legislation, we can’t protect the public from terrorists”. It coincided with a call from Conservative Party leader David Cameron to scrap the HRA and replace it with a Bill of Rights.

Now you can be pretty sure that Reid is no enthusiast for the HRA, or at any rate its interpretation, but there’s a lot more going on here than a debate on the finer points of law. There is a suspicion in Labour circles that last week’s judgment was political – a shot across the bows by a judiciary incensed at the way the government has tried to blame it for soft sentences, such as that handed down to paedophile murderer Craig Sweeney.

Reid ruled that sentence “unduly lenient” and ordered a rethink, thus trampling across the supposed separation of powers between the judiciary and the executive. Reid doesn’t like being contradicted. He believes that he is the only man who can make Labour’s hardness on crime more than a slogan.

Tony Blair has, of course, has made no secret of his own contempt for the “legal establishment”. As he sees it, ivory tower lawyers are endangering national security by a punctilious and old-fashioned interpretation of the law. And this time it’s personal: the Human Rights Act was Blair’s policy.

It’s nothing new for the government to see a conspiracy by the legal establishment. This is the way politicians think, in terms of power struggle. There’s no evidence Justice Sullivan was pursuing a vendetta against Labour, or even trying to extend the powers and scope of the HRA. He did not outlaw control orders, but rather the “draconian” way they were being implemented.

Tagging people and then banging them up for 18 hours a day with no human contact is not just a restriction of liberty, it is the negation of it. These people are effectively being punished, just as much as they would be in prison. But they have not committed any known crime and are not subject to any charge likely to be tested in court.

What the judge was saying in effect was: “We realise that certain people have to be under close supervision, and that this may restrict their liberty, but to impose such sanctions on innocent individuals is incompatible with the Human Rights Act, 1998.” You can’t have it both ways – either scrap the HRA or shape up and stop being hypocrites.

The HRA did not invent human rights; nor was it the creation of woolly-minded pacifist lawyers. It simply incorporated into British law the European Convention on Human Rights, which Britain helped to draft, and which was ratified by Winston Churchill in 1951. It allows people to pursue their rights under the convention in a British court, instead of having to go to Strasbourg.

Similarly, the 1949 Geneva Convention, which President Bush has fallen foul of, was a product of the war against fascism. In a real sense these conventions codify the freedoms that won the cold war against the Soviet Union.

This is what is so worrying about these two rulings. The courts shouldn’t have to remind democratic leaders of their responsibilities to guard our fundamental freedoms from arbitrary arrest, punishment without trial, torture and deportation. We are told the individuals under detention are dangerous terrorists, a threat to public safety. If this is so, then let’s put them in a court and hear the evidence – or let a judge hear it in private if the evidence would compromise intelligence sources.

We have seen from the accidental death of Jean Charles de Menezes last year, and from the recent shooting in Forest Gate, that intelligence is far from reliable. The Islamic world is watching with mounting suspicion. Miscarriages of justice can do greater damage than the terrorists themselves.

About @iainmacwhirter

I'm a columnist for the Herald. Author of "Road to Referendum" and "Disunited Kingdom". Was a BBC TV and radio presenter for 25 years - "Westminster Live" and "Holyrood Live" mainly. Spent time as columnist for The Observer, Guardian, New Statesman. Former Rector of Edinburgh University. Live in Edinburgh and spend a lot of time in the French Pyrenees. Will that do?


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