Can judges restore America's honour?

In the next few weeks, the US Supreme Court will decide if the Guantanamo Bay prisoners should be br

The atrocities of 11 September 2001 feel an age away. The distance is summed up in a memo, sent within a few weeks of the atrocities by the White House counsel, Alberto Gonzales, to George W Bush stating why suspects rounded up by the US military should not be treated as prisoners of war under the Geneva Conventions. The world had changed beyond recognition, Gonzales said, and "in my judgement, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions".

When his advice was leaked and printed in Newsweek of 17 May this year, it was followed up by shocked journalists across America. They forgot that Gonzales was reflecting the public mood of a time when many in the United States and elsewhere were not over-worried about international agreements. When America interned her enemies in Guantanamo Bay, beyond the reach of the Geneva Conventions and US law, few protested.

The conventions exist, among other reasons, to prevent torture. After a captured combatant has given his name, rank and number, there is nothing more he need say. In 2001, there were already public figures in the US such as the sinister celebrity lawyer Alan Dershowitz advocating torture, but they could be dismissed as loudmouths who did not speak for anyone but themselves. By 2004, it was clear that torture is what you get when you allow "obsolete" and "quaint" traditions to be pushed to one side.

Whether the torture will be allowed to continue depends in part on the US Supreme Court. At some point between now and the end of June, it will decide if the Guantanamo detainees can seek legal redress. To those who fall for the nihilist view of the United States which dominates leftish thought, the case will be a fix-up. Didn't the Republican majority on the Supreme Court rob Al Gore of the victory he won in 2000? Doesn't it go along with the ravaging of the environment and hundreds of other crimes? Surely it will refuse to mutter a word that might discomfort the Bush administration.

The US authorities were certainly confident at the end of 2001 that they were legally entitled to do what they wanted, as the Gonzales memo shows. When the New York-based Centre for Constitutional Rights announced that it would fight for the rights of detainees it was deluged with hate mail.

In February 2002, the centre's lawyers filed a petition before a district court at the bottom of the US legal ladder on behalf of Shafiq Rasul, then a British detainee at Guantanamo, and two others, Asif Iqbal and David Hicks. Like everyone else, Rasul was being held virtually incommunicado. He was not entitled to seek a writ of habeas corpus to determine whether the US government had the right to lock him up although he had not been charged with an offence, or notified of any pending charges, or made any appearances before either a military or civilian court, or been informed of his rights under domestic or international law, or had an independent tribunal certify whether or not he should be treated as a prisoner of war under the Geneva Conventions.

The case was dismissed in August 2002. As was an appeal to the Washington, DC circuit the following March.

Then in November last year, the Supreme Court decided that it would overrule vigorous objections from the Bush administration and take a third look at the test case. Its decision alone gave civil liberties groups hope. Human Rights Watch and others were speculating in March that they had a 50:50 chance of winning over a majority of the judges to the view that the status of Guantanamo was a transparent piece of legal trickery. It is meant to be beyond the reach of the US courts because technically Cuba still enjoys sovereignty over the base. But Fidel Castro's sovereign power is a convenient fiction. A Cuban stamp with the old brute's head on it wouldn't make it out of the camp because it is under total American control, and has been since Cuba leased the base to the US at the beginning of the 20th century.

As much as world opinion hates to admit it, the US government has a case that can seem plausible on first reading. No government anywhere in the world accepts that the formalities of domestic law apply to prisoners caught and held on the battlefield. Moreover, since 1950, the US Supreme Court has gone further and held that aliens captured and detained abroad lack the protections of US law. (The case concerned German soldiers, incidentally, who were caught carrying on the Second World War after Hitler was dead, in China of all places.)

Beyond that lies the question of what the US or any other government is meant to do when it captures Islamist fanatics during a conflict. They are not prisoners of war if they are not fighting for a country that is at war with the United States, but they do not look like common criminals either.

Not all of Bush's arguments are disputed by the lawyers trying to prise open the gates of Guantanamo. What gives them grounds for hope is that in this, as in so much else, his administration has taken reasonable principles and pushed them to the extreme. True, the Supreme Court did wash its hands of the Germans found in China, but they had already been tried and convicted by a US military commission. The Guantanamo Bay prisoners have been held there for two years or more without getting close to a tribunal willing to hear their cases.

No government instructs its military to read prisoners their rights on the battlefield and invite them to call a lawyer.

But Guantanamo is thousands of miles away from any battlefield. And in any case, Ted Olson, Bush's solicitor general, declared that the US government believed the detainees would have no right to habeas corpus even after the war was over.

To this must be added the admitted torture in Baghdad and highly credible allegations of torture at Guantanamo - one of the released British detainees told the Observer how he had been interrogated by an MI5 officer and a second official, ostensibly from the Foreign Office, while he "was kneeling with a guy standing on the backs of my legs and another holding a gun to my head".

In theory, the Supreme Court has nothing to do with torture. It is meant to rule only on whether the judiciary has jurisdiction or not. In practice, judges are influenced, like everyone else, by the climate of the day. They rarely admit this. Their training and procedures are supposed to prevent them being swayed by the headlines. Yet when all the respectful bows of the head have been made to judicial independence, the blunt truth remains that the courts rarely get too far out of step with public opinion.

Anyone interested in explaining why it is that the British prison population has all but doubled in the past decade will search in vain for legislation from parliament mandating an explosion in jail numbers. The only coherent explanation for the prisons crisis is that the courts have listened to government rhetoric and the media and gone along with the modern culture of punishment.

If the optimists in the New York civil liberties groups are right, we could soon something similar in the US. While the smoke was still clearing from the rubble of the twin towers, no judge wanted to ask awkward questions. Today, the live issue is whether the US courts can trust the US government not to abuse prisoners; the answer from Baghdad is that they cannot.

The change in mood was clear earlier this year when appeal judges on the admittedly liberal San Francisco bench went berserk after Bush administration lawyers told them that there was nothing in law to stop the torture or, indeed, summary execution of prisoners at Guantanamo. The judges declared that this was "the first time . . . the government has announced such an extraordinary set of principles - a position so extreme that it raises the gravest concerns under both American and international law".

The New York Times commented after the Supreme Court hearing that America's highest judges also seemed "distinctly unreceptive" to the Bush administration, and by extension to the Blair government, which has almost as much to lose from a declaration that a Guantanamo regime supported by Britain was illegal. Trying to second-guess the judiciary is a mug's game, as all the pundits who claimed to be able to read Lord Hutton's mind found out. But there is at least a fighting chance that by the end of June the Supreme Court will have restored some of America's lost honour.

Whether it will receive credit from the rest of the world for finding against Bush is another matter. My feeling is that a belated intervention will be dismissed as a paltry response, and that only full international supervision of US prisons in Iraq, Cuba and Afghanistan will begin to repair the damage. But this the Bush administration will not give and the Supreme Court cannot deliver.

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