6 September 2004

hitting reverse gear on Guantánamo I

The November 2003 speech by Lord Steyn, a judicial member of the House of Lords, is the best place to start:

Let me now turn to the second matter. The question is whether the quality of justice envisaged for the prisoners at Guantanamo Bay complies with minimum international standards for the conduct of fair trials. The answer can be given quite shortly: It is a resounding No. The military commissions contemplated by the United States government have been described by Professor Ronald Dworkin as the type of trials one associates with utterly lawless totalitarian regimes. David Pannick, Q.C., invoked Kafka's The Trial in which the great novelist describes how Joseph K's advocate warns him of the difficulties of presenting a defence when "the proceedings were not only kept secret from the general public, but from the accused as well." But as David Pannick observed, Joseph K could see his lawyer, however incompetent, and there was a court, however imperfect, making the decision. The military commissions are not independent courts or tribunals. The term kangaroo court springs to mind. It derives from the jumps of the kangaroo, and conveys the idea of a pre-ordained arbitrary rush to judgment by an irregular tribunal which makes a mockery of justice. Internationally military commissions at Guantanamo Bay will be so regarded. Trials of the type contemplated by the United States government would be a stain on United States justice. The only thing that could be worse is simply to leave the prisoners in their black hole indefinitely.

Australia is the only allied government which has accepted the Guantánamo process for its citizens. If Australia, or rather the Man of Steel, had been daring enough to object it is probable the whole thing would have been abandoned. The Guantánamo 'operations and procedures' cannot be the problem because they have not changed since Bush first issued a series of executive orders on 13 November 2001. The military commissions are not the same as regular courts-martial. There is no appeal to an actual judge.

Since nothing has changed in the operations and procedures it follows that Downer and Ruddock either have just discovered problems they previously ignored or have chosen to try and avert criticism in the context of the election. More later.

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