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Commitment to our Values??

7.19.2005

Following on from a piece in yesterdays observer by Andrew Rawnsley, I came across a briefing paper on HRW regarding the ongoing proceedings of enemy combatants in Gitmo. Rawnsley's argument was that contrary to bravado statements from the political leadership that 'terrorists will not change our way of life etc etc' they are actively doing so. I am inclined to agree and this is an Orwellian case of the reality departing from the depicted or perceived truth. I am not suggesting a deliberate attempt by the executive/establishment at a power grab, thats another post entirely, simply the fact that our politics and our discourse are, and will continue to be, patently different because of the 7/7 bombings.
One of the clearest messages that is being heard around the western establishment is that no matter what we must cling to our freedom, our way of life, our commitment to democracy and defend our society from 'evil ideologies', 'those who hate us' and so forth. This is a sentiment I echo and any progressive who wavers before condemning the attacks on London and others should consider the variety of critiques of envious leftists. The call for defence of democracy makes on consider exactly what our disparate and numerous systems of democratic polity have in common, what it is that binds the west together as an entity. The freedoms enshrined in the Bill of Rights perhaps? The freedom of private enterprise? Preservation of Human Rights and the rule of law?
It is commitment to these very values that is reiterated every single time one of the world leaders stands up and says terror will not defeat us (whether it can or not is another issue). Yet the U.S and allies ha taken the GWOT on a trajectory which has done a better job of undermining western liberties and freedoms than many extremists could have hoped for. The report from HRW outlines in 13 pages a critique of the administration of justice to those in Gitmo that may not reach the light of day in national media. I apologies if it did, I simply may not have noticed.
The military tribunals which are being put in place to attempt to try suspected terrorists and assorted suspected criminals, take serious liberties with the rights of non-US citizens by curbing the degree of public scrutiny and recourse of defendants to instruments of law according to the report the main points of critique include;
"Under the Defense Department rules, the military commissions will or are likely to:
  • Deprive defendants of independent judicial oversight by a civilian court.
  • Improperly subject to military trials persons apprehended far from any battle zone.
  • Try prisoners of war (POWs) in a manner that violates the 1949 Geneva Conventions.
  • Deprive defense counsel of the means to prepare an effective defense.
  • Prevent defendants from seeing all evidence introduced against them.
  • Impose no obligation on the government to disclose exculpatory information.
  • Place review of important interlocutory questions with the charging authority rather than
  • an independent adjudicator.
  • Fail to guarantee that evidence obtained via torture or ill-treatment shall not be used.
  • Allow wide latitude to close proceedings and impose a “gag order” on defense counsel.
  • Deprive military defense counsel of normal protections afforded military lawyers from
  • improper “command influence.”
  • Restrict the defendant’s right to choose legal counsel.
  • Provide lower due process standards for non-citizens than for U.S. citizens."
The jurisdiction of the commissions is set to be as broad and global (amorphous if you will) as the GWOT itself. For a state which refuses to subscribe to the ideal of International Transnation Law embodied in the ICC and ideas of global accountability for actions of the state, the granting of similar powers to an unconventional military court smacks of double standars at the very least. The legal theory suggests that any person suspected of involvement with the enemy, whomever the enemy du jour happens to be, can be tried in the military commission instead of federal law. This effectively leaves every corner of society open to being termed a war zone, thus trumping civilian law for military courts.
The principle of equality before the law is intended to apply to all people before the one law. Usurping rules of justice and due process to nail down convictions may catch some extremists, but the drag-net approach is likely to catch innocents too. Normal safeguards against false convictions may be lost in the course of the running of these commissions. HRW concludes that;
"Such a misuse of military courts to try civilians would be an evasion of
U.S. obligations to conduct fair trials under international human rights law."
That's due to the obligations contained in the Third Geneva Convention which stipulates that the accused POW is due the same process and law procedures as members of the detaining army. Alongside the refusal to allow independent and competent determination of POW status is the attempt to undermine the pillars of criminal defence, lawyer-client confidentiality, recourse to appeal etc.
The legal arguments continue for over thirteen pages and I encourage all of you to read it.
There will undoubtedly be those who argue that the War on Terror is a new war and global terror a new phenomenon. In order to remain free we must give up some freedom to effectively police our state the argument goes, there are those out there who hate us and have the infrastructure in place to kill us in our thousands. The effective use of fear to curb the wests commitment to democratic politics and the belief in human liberty is troubling for us all.
Our commitment to democracy must remain undimmed and we cannot allow the security arguments to undermine our beliefs.
The defence of our values is something we will all come to expect from our leaders. As Shakespeare once wrote, "words to the heat of deeds to cold breath gives," actions speak louder than words. Dissent and opposition to some policies in the GWOT is not abandoning our society to extremists, its reaffirming the motivation for engaging with them. The easy option is to allow the US Military to do what it will to secure convictions.
The belief that the men and women subject to trial are willing to ignore our human rights must be proved and cannot be implicitly accepted or suggested by the nature of the proceedings. International law and international standards of governance must be put to the top of the global agenda as a means of fostering critique and dialogue in the whole of the world. Democracy and freedom is not the preserve of the rich of the correct religion. Those on the right have been evangelising democracy for much of this century thus far. The left must take charge of the cause to ensure equality and humanity is accepted as a natural human condition.
One of the keys to unlocking the cycle of hatred is creating an environment where al-Qa'ida theology has no grip, has no evidence (real or apparent) to support its recruiting methods. Creating an environment where those of all religions and hues feel free to speak out and criticise, where opposition is not the preserve of the elite and popular discontent is expressed through violence. Essentially, I believe that victory if there is such a thing, is attainable only through ongoing support for democracy everywhere, the liberation of humanity around the world and above all the unflinching 'defence of our values' not the undermining of them for short term need/gain.
The US must hold fast for once to its rhetoric. Our system is not a religion but a framework. We must support those who wish to support their people ini freedom and oppose those who wish to deny this fundamental and basic human right. We cannot condemn suspects to shoddy justice, we need to support due process, independent evaluation and adequete procedure. Rule of law is not an indulgence and treating it as such comes dangerously close to an attitude of rule of the qualified all-seeing all-knowing.
RR

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