By Simon Jenkins in Times Online
Thank God for lawyers. When elected legislators fail in their duty to check executive power, judges must step forward or democrats will rely on soldiers or mobs.
In both Britain and America this past week, judges have begun to curb injustices invoked in the name of counter-terrorism by the Blair and Bush administrations in the years since 9/11. The British High Court’s ruling on ‘control orders’ and the US Supreme Court’s judgment on Guantanamo have demanded human and judicial rights against governments overreacting to Islamic violence. The calls have been modest, but they have begun.
In Britain, ministers had assured critics that orders for house arrest of suspects would be subject to judicial oversight. Now that oversight has occurred they are furious and will appeal (and doubtless change the law if they do not get their way). A heavy duty rests on the law lords.
Five years after 9/11 and one year after 7/7, the so-called ‘war on terror’ is acquiring a narrative. It started with an outrage and moved swiftly to belligerent retaliation, including the killing of thousands of non-participants. This led to a burst of repressive authoritarianism as embarrassed leaders sought to reassure the public while enhancing their power as ‘commanders in chief’. The narrative has now matured into trench warfare between that power and constitutional roadblocks meant to limit it.
No sensible person dismisses the predicament facing the two governments after their respective terrorist attacks. Both had in some degree been found wanting. With rumour flying and repeat attacks probable, the prospect of further slaughter made ‘better safe than sorry’ the battle cry of the republic and the kingdom alike. It led to the emergency suspension of habeas corpus and the Geneva conventions while western security struggled to recover its equilibrium.
The overreaction was extreme and probably counterproductive. Those in control lost their self-control. Exaggerated claims were made to persuade people that an ongoing threat from Al-Qaeda, even after the attack on Afghanistan, was apocalyptic, involved weapons of mass destruction and embraced an axis of evil states. Intelligence was corrupted and polluted to this end.
This provided a global coup for Al-Qaeda and was a poor comment on the resilience of western democracy. Guantanamo and its detritus of arbitrary arrest, extraordinary rendition and ‘non-lethal torture’ will long remain a blot on America’s judicial record.
In Britain, Tony Blair’s annual counter-terrorism laws have become a similar neurotic twitch, supported by mendacious dossiers about nuclear weapons, anthrax, smallpox and other horrors ‘about to be unleashed’ on the public. Blair personally pandered to the repressive tendencies of the security industry in seeking 90-day detention, casual arrest and often ridiculous curbs on speech, assembly and right to trial.
Given the failure of elected assemblies to check this drift to authoritarianism, judges are having to feel their way to a more balanced counter-terrorist regime. They and the public are not stupid. They will accept that the current bout of violent Islamicism appears to require longer periods of interrogation and swifter deportation, with perhaps less fastidiousness over the destination.
But natural justice must be granted to the thousands now incarcerated in the West in the backwash of 9/11 and 7/7. Institutions other than government must supply it if the sea in which this pernicious form of fanaticism swims is to be drained.
In time I believe these injustices of the post-9/11 hysteria will be corrected as defenders of the rule of law assert themselves (but they will not include British MPs). Other legacies will be harder to erase because their supporters remain in denial.
The retributive wars against Afghanistan and Iraq are taking their predicted toll on victors and vanquished alike. Iraq has become a frantic exercise in military disengagement from a theatre which the coalition has lost all ability to control. It was a neo-imperialist spasm, a belief that a superior West could reorder the politics of an inferior East and leave it a better place. It has failed and terrorist cells the world over are exulting.
In Afghanistan the return of Taliban and other anarchist forces is the direct result of a five-year occupation of the most startling cynicism, not least the promotion of the poppy crop to reward anti-Taliban warlords. Even so, it is a mystery how a punitive war was allowed to creep into Iraq-style nation-building. An even greater mystery is why, when the Americans stepped back and passed the poisoned chalice to Nato, the latter accepted.
There is no more bizarre epitaph to 9/11 than the 36-nation, 400-NGO Tower of Babel that is modern Kabul, virtually a besieged cantonment. The mission ‘to reconstruct a democratic Afghanistan’ is the nation-builder’s equivalent of the Dardanelles expedition. The Americans are covering their retreat with a final assault on Taliban areas before Nato’s British commanders take over this month, forcing even the president, Hamid Karzai, to protest at the killings of hundreds in areas where he knows he must do business or fail.
As for Nato, nobody can give a coherent view of its objectives. None declared by the Ministry of Defence in London last year ‘ eradicating poppies, establishing order, extending the reach of the Kabul government ‘ is remotely plausible on the ground. The British force in Helmand is so underpowered it is at risk of being overwhelmed in the field. The new defence secretary, Des Browne, speaks of ‘challenges’ and ‘making progress’ and ‘countering terrorism’, but he sounds like a character from Oh! What a Lovely War as he carries out the reckless decision of his predecessor, John Reid, to put troops in harm’s way.
In his admirable new history of modern terrorism, Unknown Soldiers, Matthew Carr points out that if we are not to endure ‘a permanent state of emergency in which frightened and manipulated politicians are herded into anti-terrorist corrals’ we must develop ‘a more mature and honest attitude towards violent conflict’.
We cannot allow two dozen mass murderers to change our politics and way of life. The choice is ours, not theirs. Terrorism is not an ideology or a ‘threat’. It is simply a weapon, the random killing of civilians. It is a threat to life but not to democracy, let alone western civilisation, unless we choose to make it so.
To those brought up on the cold war and the real danger of nuclear conflict ‘ a war which Bush personally funked in Vietnam and Blair wanted Britain to fight disarmed ‘ the past five years of ‘war’ have seemed unreal.
Imminent attack from weapons of mass destruction has been cited so often as to constitute Orwellian brainwashing. The abuse of executive discretion and risk assessment has been outrageous. The cynic’s maxim that every organisation ends up being run by agents of its enemy has seemed all too real as Bush and Blair play into the hands of Osama Bin Laden and Muslim extremism.
Such idiocy ‘ and its appeasement by politicians and commentators ‘ is the most dangerous flank exposed by the aftermaths to 9/11 and 7/7. In Britain it was galling that Londoners should handle the explosions with calm normality while their government lost all sense of proportion.
It is barely conceivable that today’s cabinet would do as Margaret Thatcher did on surviving an assassination attempt in 1984 and walk over to her party conference and make a speech. When leaders can be so traumatised by one violent event, we must wonder how brave they would be when faced with a more concerted threat.
Somehow the British Army must be extricated from Iraq and Afghanistan. Somehow British liberties must be rescued from their detention without trial in Downing Street. Somehow Britain’s respect for its now substantial Muslim population must be re-established, as it can be without loss of vigilance against violence.
Bombs have never threatened the British constitution and way of life. They are too strong for that. The only threat at present comes from members of Her Majesty’s government.