The US Supreme Court put in a good word for democracy and the rule of law on 29 June, ruling in the Hamdan case that the military commissions in Guantanamo Bay were unconstitutional. Five justices said that the military commissions did not qualify as "properly constituted" courts.
The court identified salient flaws in the process - holding parts of the trial without the defendant, using secret evidence against him, hand-picking the tribunal, making up the rules as you go along, and so forth.
This was good news, but should hardly have been novel. In the UK, Lord Justice Johan Steyn recognised all this and more nearly three years ago when he described the tribunals as kangaroo courts.
I was scheduled to return to Guantanamo at the end of July for further commission hearings in the case of Binyam Mohammed, a resident of north Kensington, who was to be tried based on confessions tortured out of him at the tip of a razor blade. I prefer Binyam's nickname for the military tribunals. Should it be called a commission, he asked at his first hearing, or a con-mission? It was designed to con the world into thinking that the military was respecting due process. The panel consisted of seven hand-picked colonels. The one nominated to be the "judge" moderated a public discussion last year on the need for torture in the "war on terror".
Back to purgatory
The military commissions were, indeed, a farce. Yet let us not wave victory flags too soon. However flawed, the commissions were the first opportunity Binyam had in four years to say anything in public. He knew that he was speaking not to seven colonels, but to the media sitting in the military courtroom behind him. He knew that so long as the world learned the truth, the political pressure would become too intense to allow his continued detention. Now, he gets tipped back into the anonymous purgatory of Guantanamo Bay's maximum-security cell blocks.
It seems unlikely, as Binyam sits there, that the extreme wing of the Bush administration will go down without a fight. The Supreme Court itself was badly fragmented, the decision hanging on the tenuous vote of Justice Anthony Kennedy, a conservative appointed by Ronald Reagan who refused to join some of the court's judgement. Bush's doctrinaire legal team will run to Congress to try to change the law.
The military continues to argue the case for secret trials. At a press briefing hours after the decision, a "senior administration official" emphasised that the Supreme Court did not categorically forbid "excusing the accused during part of the proceedings because of unique evidentiary concerns about dealing with classified information . . ." In other words, the military still maintains its right to use secret evidence against the prisoners.
"Nothing in the holding affects the authority of the president in wartime to detain enemy combatants through the duration of hostilities," the official continued. Translated, this means that even if the military cannot conduct tribunals under the rules it made up, it can simply hold the prisoners without trial until the "war on terror" is over - which, as President Bush has said, could be "a generation" from now.
So the Supreme Court held that Binyam Mohammed won't get convicted and sentenced to years in prison by a military con-mission: he'll just rot in Guantanamo without a trial of any kind.
We must hope that the wiser heads in the White House prevail. Before the Supreme Court ruling, there was an insurmountable barrier to the closure of the prison: the Bush administration would have been required to admit the Guantanamo experiment was a mistake.
Now the court has volunteered to be a convenient whipping boy. Bush can tell the electorate that he did what he could to protect America, but a bunch of ivory-tower judges got in the way.
Whatever the response of the administration, we should all be grateful to the five Supreme Court judges who tried to call time on Guantanamo. "The constitution places its faith in . . . democratic means," the judges said. "Our court today simply does the same."
Not a moment too soon.
Clive Stafford Smith is the legal director of Reprieve, a UK charity fighting for the lives of people facing the death penalty and other human-rights abuses. He represents 36 of the prisoners in Guantanamo. He will be writing this column monthly. www.reprieve.org.uk or contact Reprieve at PO Box 52742, London EC4P 4WS. Tel: 020 7353 4640