Bad Men: Guantanamo Bay and the secret prisons
Clive Stafford Smith Weidenfeld & Nicolson, 320pp, £16.99
ISBN 0297852213
It was Charles II who, in 1660, first hit on the notion of destroying terrorist suspects (in those days, republicans) by leaving them to languish on an offshore island, beyond the reach of habeas corpus. Even then, the ploy was regarded as devious: when parliament recovered its nerve in 1679, it passed the Habeas Corpus Act to extend the great writ to Jersey and other royalist Guantanamos. In 2002, Bush lawyers tried the same tactic as the Stuart king, but were overruled in 2004 by the US Supreme Court. They also advised the president that the Geneva Conventions against torture and unfair trial did not apply on foreign land, but in 2006 the Supreme Court rejected their arguments. Then Congress, to its shame, abolished habeas corpus by legislation that the Supreme Court will probably declare unconstitutional in 2008. So it goes: a process crushing to any spirit left in prisoners who have already spent five years without the prospect of a fair trial.
So much has been said and written about this symbol of injustice that another book may seem surplusage. Yet Clive Stafford Smith, a doughty lawyer defending several detainees, does offer a new perspective. His is a laconic and sardonic first-person account, acutely observed and at times blackly humorous, of what Guantanamo Bay is actually like. After a night of army-channel pornography in an island motel, you breakfast at a dockside McDonald's and watch the soldiers saluting their officers - "Honour bound, Sir" - and receiving the reply - "Freedom, Soldier". After these magic passwords, you are escorted into a world where iguanas have, in law, more human rights than the human detainees.
Clemenceau pointed out that military justice is to justice as military music is to music. The various "military commissions" devised for detainees do not qualify as "justice", because the so-called judges lack any independence from the prosecuting and detaining authority. Stafford Smith overdoes the term "kangaroo court" (quite how this delightful marsupial became associated with forensic railroading remains a mystery), but in fact they are not courts at all. They are star chambers, creatures of the executive, in this case of the US defence department. It would have been so easy, and so obviously right, to have imported real judges, especially with a few international jurists as observers, for real trials, but the Bush administration has not been prepared to take the risk of an occasional acquittal.
The worst feature - certainly the most counter-productive for our attempts to drain sympathy and support from terrorists - has been the period at Guantanamo when the Geneva Conventions were disapplied, on the advice of the Bush lawyers. Military interrogators were taught mistreatment techniques - "water boarding" (virtual drowning), "phobia exploitation" (standing prisoners naked in front of growling Alsatians) and, as one legal memorandum notoriously put it, "how to inflict pain comparable to physical injury such as organ failure, impairment of bodily functions or even death". These techniques, once taught in Geneva-free Guantanamo, "migrated" (as the Schlesinger commission termed it) along with the military interrogators when they went off to Iraq, where the Geneva Conventions certainly did apply. The pictures from Abu Ghraib - al-Qaeda's recruiting posters - were the result.
The only protection for prisoners of war is the right in international law of Red Cross visitation. But astute though Red Cross visitors are, their reports must be sent in secret to the detaining authority. The Red Cross knew all about ill treatment at Abu Ghraib, but its reports were ignored by the US military and the scandal was exposed only when a copy was leaked to the Wall Street Journal. Does this silence amount to complicity? Stafford Smith points out that the Red Cross has been visiting Guantanamo since it opened, but cannot say a word about the conditions: "It makes the US military look good, but what good does it achieve for the prisoners?" he perceptively asks. If the Red Cross is to be a real deterrent against torture, then states must be pressured to waive confidentiality in its reports. The UK should take the lead and become the first Geneva signatory to disclaim this right of secrecy.
In this book, a lawyer tells the stories that his clients will not be able, for the foreseeable future, to tell in any public trial. They cannot be tested. Yet the travails of Binyam Ahmed Muhammad, specially rendered for torture to Morocco, seem convincing; and the plight of al-Jazeera cameraman Sami al-Haj should attract the attention of all organisations concerned with press freedom. There are a few minor errors in the book (Walter Raleigh was tried not by star chamber, but by a Winchester jury; the US has ratified one enforcable human-rights treaty, the Genocide Convention), and there are a few gratuitous tirades against Tony Blair, whose government cannot be blamed for Guantanamo.
The real mystery is why the US government still has no plans to close Camp Delta or to provide the sort of due process for its inmates that it extends to any American citizen arrested for terrorism. For all the hostility that the institution of Guantanamo Bay has aroused throughout the world, the suspicion must be that the US likes it that way, perhaps imagining that this symbol of its defiance of the law of nations will be seen as a signal of its toughness on terrorism. In the wider world, it just doesn't work like that.
Geoffrey Robertson QC is the author of "The Tyrannicide Brief" (Vintage) and "Crimes Against Humanity: the struggle for global justice" (Penguin)
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