28 July 2003
When it was first announced that two UK citizens, Feroz Abbasi and Moazzam Begg, were to stand trial before a military commission in Guantanamo Bay, it appeared that at long last Tony Blair would do something to stand up for their fundamental human rights.
The Government came under parliamentary pressure, with 200 MPs of all political parties (including senior Tories and Labour loyalists) signing a motion calling for repatriation to this country. Government ministers Chris Mullen and Baroness Symons were authorised to say that vigorous representations would be made, and the Government dispatched its most senior law officer, the Attorney General Lord Peter Goldsmith, to the US for talks.
Now, however, it appears Blair has done a U-turn and will not to stand up to the US government at all.
The 'concessions' announced by the Attorney General - that UK citizens will not face the death penalty and that a UK lawyer may be allowed onto the defence team as a 'consultant' - cannot disguise the simple fact that the proposed trial will breach all international norms for a fair trial.
The proposed trial will be in front of judges who are military officers. They will be wearing the same uniforms as those who have held Abbasi and Begg captive for over 18 months, incommunicado, in conditions that can only be described as inhuman and degrading.
Detainees are incarcerated in 8ft x 6ft wire cages with no privacy and with the lights on all night. They are allowed out for exercise only twice a week for 20-minute periods in a small, enclosed exercise yard. These are conditions that would challenge anybody's mental health.
During this time the detainees have been intimidated and coerced into speaking to interrogators without a lawyer being present.
No competent tribunal has been convened to decide on the status of the detainees as required by the Geneva Convention, nor has anyone so far been charged with a criminal offence.
The status of 'unlawful combatant', which the US claims justifies its actions, simply does not exist in international law. The situation is already one of a grave abuse of human rights.
After 18 months of doing nothing about this, despite pleas and even court
proceedings in the UK and US brought by the families, it finally appeared that the UK Government would have to do something.
The Attorney General will have been well aware that military commissions which are not independent of the US government (George Bush is head of the US armed forces) cannot satisfy the basic requirement for a fair trial as set out in the International Covent on Civil and Political Rights, Article 14, to which the US is a signatory.
It is inconceivable that the Attorney General would not have pointed this out to the US officials and asked for a fair trial in a civil court. Moreover, the accused must have a military officer appointed by the US government as chief defence counsel, and any civilian defence counsel may be excluded from hearing large parts of the evidence, which may be heard in private.
The proposal for a UK lawyer to be a 'consultant' may mean nothing: Sadiq Khan, name partner of Christian Khan, was a 'consultant' on the defence team of Zacharias Moussaoui and the only practising Muslim on the team, but he was not actually allowed to see Moussaoui when he went to the US in the role of consultant. All this will surely have been pointed out by the Attorney General, but his representations must have fallen on deaf ears.
Given this situation, what should happen and should have happened long ago is for the UK Government to make proper formal diplomatic protests. The Pakistan government has done this and has secured the release (without any requirement for domestic court proceedings) of some 30-40 of its nationals. Ironically, a Pakistani passport is a much better protection than a UK one against US abuses.
Instead of making diplomatic protests, or even indicating that the concessions he has won are not enough, the Attorney General appears to have been given instructions to present the situation as acceptable.
The first hint that this would be the case was when Tony Blair told a television interviewer that military commissions would be accepted provided they met our standards. It may be a long time since the Prime Minister practised law, but surely he cannot be ignorant that a military commission is not capable of meeting the most fundamental requirement - that a criminal court must be independent of the government.
The spectacle of the Attorney General, the Government's most senior and respected law officer, appearing to agree that UK citizens can be placed on trial in such a totally unfair tribunal is sickening and degrading.
Twenty five years ago he and I gave free legal advice together one evening a week at a legal advice clinic in Bethnal Green.
The Peter Goldsmith I knew then was an idealistic young barrister doing pro bono work for the poor and oppressed, who would have been appalled at the racism that motivates the unfair treatment of these young Muslim men and the discriminatory treatment of them compared with US citizens, none of whom are in Guantanamo Bay.
I cannot believe that he has changed so much that he will instead allow his professional skills to be used to defend the indefensible.
There are fundamental choices in life. People may choose to stay in government and not to criticise it because they think they are doing more good by doing so.
But there has to be a bottom line for everyone. For any lawyer who cares about defending human rights their bottom line should be that they do not allow themselves to be used as a cover for abusing human rights. If I or any other UK lawyer was asked to be a defence 'consultant' in an unfair trial, that would be a difficult decision and one which I would rather not be asked to contemplate.
But to do so under protest would not be the same as allowing oneself to be an apologist for unfairness.
I believe Goldsmith to be a decent man. However, if he is unable to persuade Blair to do the right thing by the UK citizens, and say openly to the US that military commissions are wholly unacceptable, I believe the only decent thing he can do is resign.
Louise Christian is a partner at Christian Khan solicitors. She is acting for the families of Feroz Abbasi, Tarek Dergoul and Martin Mubanga, who are detained in Guantanamo Bay