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Imprisoning Terrorist Suspects in Britain: Law Lords Reassert Rule of Law

By Doug Cassel

By imprisoning suspected terrorists at Guantanamo for years, without access to lawyers or judges, and without criminal charges or due process of law, our government mocks the rule of law. This is the clear message sent last week by the highest court of our closest ally.

Britain 's Law Lords ruled 8-1 that similar detentions of a far smaller number of suspected terrorists in Britain – even with greater procedural safeguards than at Guantanamo – are “incompatible” with the rights to liberty and equality guaranteed by the European Convention on Human Rights.

At Guantanamo we currently imprison about six hundred suspected terrorists, many for nearly three years and running. Only a handful have been charged with crimes. Hundreds of others have been held for years without charges, lawyers or access to court. Until last June the Administration argued that no US court – and hence no court at all – could hear any claims by these prisoners, such as their protestations of innocence or allegations of torture.

Last June the Supreme Court rejected the Administration position. It ruled 6-3 that our courts have jurisdiction over Guantanamo . Since then, however, the Administration insists that the prisoners there have no legal rights whatsoever. Our courts may hear their cases, it contends, only to dismiss them. If this stonewalling persists, Guantanamo is headed for a return engagement in the Supreme Court.

The British case involves the nine suspected terrorists imprisoned for three years without charges under Britain 's anti-terrorism law of 2001. Like the prisoners at Guantanamo , they are all foreign nationals.

Britain has no written Constitution, but is a party to the European Convention on Human Rights. As interpreted by the European Court of Human Rights, that treaty prohibits imprisoning suspected terrorists without charges for more than a few days.

The treaty allows an escape clause. In case of a “public emergency threatening the life of the nation,” a country may temporarily exempt itself from the right to liberty, but only “to the extent strictly required” and consistent with its other international law obligations.

Whatever threat Britain may face from Al Qaeda, opined one Law Lord, it does not threaten the life of the nation. Thus there can be no exemption from liberty. However, a majority of seven Law Lords, while expressing some doubts, gave the executive the benefit of the doubt and accepted that there is an emergency.

Even so, they found that the prolonged detentions are not strictly required. Moreover, the detentions violate Britain 's international law commitments to equal treatment of foreign citizens. If alleged terrorists who are British citizens cannot be imprisoned for years without charge, the Law Lords asked, why must alleged foreign terrorists be so imprisoned?

The same rationale condemns Guantanamo . There we imprison only foreign citizens. While two US citizens have also been imprisoned as alleged “enemy combatants,” they were held in the US , and even the government concedes that they have legal rights which may be enforced by our courts. (One of the two, Yasir Hamdi, was released and sent to Saudi Arabia after winning his case in the Supreme Court.)

The British detentions are in fact less an affront to the rule of law than ours. Unlike Guantanamo , whose prisoners are not free to leave, Britain detains only prisoners it wishes to deport, but cannot. As soon as a prisoner finds another country willing to take him, he is free to go.

Even while detained at Britain 's Belmarsh prison, the prisoners have greater legal rights. They are represented by a special advocate before a secret immigration court headed by an independent judge. Appeals from that court can be taken to courts of law, as in the case decided last week. And a prominent lawyer, Lord Carlile, acts as an independent reviewer of their imprisonments.

In short, as noted by Baroness Hale in her opinion in the case, “Belmarsh is not the British Guantanamo Bay .” The “reach and thrust” of the US imprisonments, writes Lord Carlile in the London Guardian , “are greater and more invasive into civil liberties than anything enacted or even conceivable” in Britain .

Granted, different legal arguments apply to Al Qaeda fighters captured in battle in Afghanistan . Subject to Geneva Convention safeguards, they may be detained under the laws of war. But some prisoners at Guantanamo were captured in peacetime, in places as far away as Bosnia and West Africa . They are no more prisoners of war than are the prisoners in Britain . They, too, are simply suspected terrorists, entitled to the due process rights of criminal suspects.

It will now be up to Parliament and, if need be, the European Court of Human Rights, to respond to the Law Lords' ruling. Some of the nine prisoners may be released, while others may be charged with crimes. In any case the British legislation will have to be revised.

America is now left isolated as an international embarrassment to the rule of law. No other European country – not even Spain after the Madrid bombing – allows indefinite imprisonment.

The point is not to release suspected terrorists wholesale, but to afford them due process of law. The Pentagon reacted to its losses in the Supreme Court last June by setting up military review panels, where prisoners have no right to counsel. But if liberty is to be assured -- under both international law and our Anglo-American legal heritage -- the guardians of freedom must be independent judges, not military officers posing as courts.

Doug Cassel is Director of the Center for International Human Rights of Northwestern University School of Law. His commentaries are regularly broadcast on Chicago Public Radio's World View each Wednesday during the 1:00 p.m. hour. Views expressed are those of the author, and not necessarily those of Northwestern University, the Center, or Chicago Public Radio.