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 forty-two days. In both the United States of America and in Britain, governments that attack civil liberties in the name of security still rule. But in the past week the tide has turned in both countries.
In the US, 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 in 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 US 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 recently despite the resistance of both major opposition parties and 36 rebels from his own Labour Party, something unprecedented happened.
David Davis, the Conservative MP, serving as shadow home secretary, 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”.
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 90 days in 2005, and after much haggling it was fixed at 28 days.
So what possessed Brown to want to lengthen it yet again? Political expediency, of course. Brown’s unchallenged succession to Blair as prime minister is already seen as the 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.
Stupid. The Conservatives decided to oppose the legislation, although with some misgivings. About 50 Labour MPs were prepared to vote against their own government, but various pressures reduced that to 36 for the final vote. The law squeaked through by a majority of only nine votes. Brown is weakened, not strengthened, by this vote, and the ugly law he has pushed through the House of Commons is likely to die in the House of Lords.
In both the countries, where civil liberties were damaged by the “war on terror”, the tide is turning. About time, too.