THE declaration by Lord Falconer of Thorton that the detention camp at Guantanamo Bay was a “shocking affront to democracy” was a prominent, important and well-timed declaration of Britain’s objections to this part of US policy.
In purely political terms — and nothing in British or American politics at the moment can be devoid of that calculation — it also shows the new value to British politicians of asserting their differences from the Bush Administration, if those exist. Lord Falconer added one sentence to his speech in Sydney that was absent from the text distributed the night before. It was: “That we disagree on this issue does not detract from the fact that the USA is a close and staunch ally of the UK.”
Up to a point, Lord Chancellor. The Government’s disagreement with the Bush Administration on this question, which he expressed yesterday in terms of deep values, could turn out to represent a very different view of how to fight terrorism.
In his speech to an audience of senators, MPs, judges and academics at the supreme court of New South Wales, Lord Falconer argued: “It is a part of the acceptance of the rule of law that the courts will be able to exercise jurisdiction over the executive.” Otherwise the conduct of the executive would not be “defined and restrained by law”, he added.
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“It is because of that principle that the USA, deliberately seeking to put the detainees beyond the reach of the law in Guantanamo Bay, is so shocking an affront to the principles of democracy,” he said.
It is the second time that he has criticised America’s pen for alleged terrorist prisoners on the coast of Cuba; in June he called it a recruiting agent for terrorism. Lord Goldsmith, the Attorney-General, has called the base unacceptable. Tony Blair has called it an anomaly.
So we can take yesterday’s statement as the British Government’s position. All the same, it has been distilled out of some indecision, still not resolved, about how to treat those accused of terrorism.
Last week President Bush announced that America would send 14 “high-value” suspects to Guantanamo Bay, from secret CIA prisons in other countries, whose existence he incidentally confirmed.
That provoked a debate in the Foreign and Commonwealth Office about whether Margaret Beckett, Foreign Secretary, should say something at least welcoming the transfer of these prisoners from out of the CIA shadows into some form of judicial process, even if only to the Guantanamo military trials that Britain regards as unfair.
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The conclusion, surely right, was that she should not, lest Britain appear to endorse these trials. That seems to have surprised some US officials, who appear to have expected overt endorsement of a move that they regard as a big step in answering critics.
It is just possible that Britain’s censure may have some small effect on the wrangle in both houses of Congress about the Guantanamo trials, and other judicial questions about the Administration’s War on Terror. Debate may begin next week on a Bill backed by the White House — and its rivals.
The White House offers some improvements to the “military commissions” whose legality was struck down by the Supreme Court in June. The new version allows limited appeal. But it would still not allow those charged to hear classified evidence against them, even on charges carrying the death penalty. Evidence gained from torture would be inadmissable, but the military judge would define whether torture had taken place — a central question for the 14 latest arrivals.
Some Republican senators, led by Lindsay Graham, a former military judge, and John McCain, the war veteran and probable presidential contender, are battling for a version that clashes with the White House on these points. Theirs would give prisoners the rights of conventional military tribunals, because, they argue, the US should not sink to the level of its enemies. On that principle, it seems, Britain agrees.