Dodging the Rule of Law

by Terry Waite

There is no getting away from the fact that this was a terrible event when over three thousand innocent men and women lost their lives on this day.
Millions of dollars worth of damage was done to property but the damage done to the confidence of the American people was, and remains, incalculable.
An immediate response came from Congress when a joint resolution was passed authorizing the President to use "all necessary and appropriate force against those nations, organisations, or persons he determines planned, authorized, committed, or aided the terrorist attacks…or harboured such organizations or persons".
The President acted quickly by sending forces into Afghanistan to deal with al Qaeda and the Taliban who provided the organization with support.
Whilst hostilities were taking place the United States began to round up foreign suspects abroad (estimates put the number at about 650 although that might be a conservative figure), and held them at the American Naval Base at Guantanamo Bay in Cuba and at other locations some of which, it is believed, have not been disclosed publicly.
Guantanamo Bay is unusual.
In 1903, following the Spanish-American war the United States leased the 45 square miles of land and water along the southeast coast of Cuba from the newly independent Republic of Cuba.
The agreement states that the United States would recognize the ultimate sovereignty of the Republic of Cuba over the leased territory, while the Republic consents that during the period of occupation by the United States the USA shall exercise complete jurisdiction and control over and within the said area. A treaty in 1934 stated that the agreement would remain in effect for as long as the USA occupied the naval station at Guantanamo Bay.
I mention this specifically because at the very moment of writing this article for Common Theology the Supreme Court of the United States has ruled that the continued detention of foreign nationals in Guantanamo can in fact be challenged in the United States courts. Of course, the whole reason for holding them at the Naval Base was so that they would be held outside the jurisdiction of the American Courts and thus could be denied due process.
At this point in the argument let me change tack slightly. A number of years ago when working at Lambeth Palace as an adviser to the then Archbishop of Canterbury I became involved in working for the release of hostages.
I had some success in aiding captives to be released from Iran and Libya but fell foul of political machinations in Lebanon and became a captive myself.
I have written about these events in a book Taken on Trust and will not repeat them here, suffice to say that my captors took me on suspicion.
They suspected (incorrectly I might add) that I was an agent of government. I was blindfolded, incarcerated, denied legal representation of any kind, kept from any contact with the outside world or with my family. I was interrogated, during which forceful methods were used, and I faced a mock execution. Had I not been able to convince my captors that I was a genuine humanitarian negotiator then I certainly would not be writing this article today.
There were many factors that led my captors to behave as they did but one important one was their mistrust of the United States and of the West in general. They felt manipulated by the overwhelming power of the West and fought back in whatever way they could-one way of which was by taking hostages.
It is not my intention to argue the merits or demerits of their case and I deplore the methods they used in an attempt to achieve their political objectives. However, compare the situation of a hostage with the situation facing a man held on suspicion in Cuba or elsewhere.
The men detained by the United States are detained on suspicion. They are suspected of being involved in one way or another with terrorist activities. They are denied due legal process and contact with the outside world apart from an occasional visit from the International Red Cross.
It appears that in some instances they have been subject to forceful or intimidatory methods in order that confessions might be obtained. It appears that those found guilty by a Military Tribunal might face the death penalty. In effect, the President supposedly acting under the powers given to him by Congress, is acting as arresting officer, interrogator, prosecutor, judge and-God forbid-executioner.
What, I ask, is the difference between the process through which these men are passing and the process which I and others endured as hostages?
There is no doubt whatsoever that the whole world has to be on guard against terrorism and that, as I have already said, the attack on the United States was nothing short of a moral outrage.
However, I would strongly contend that one does not fight terrorism by adopting the methods of the terrorist.
Due process has been hard won in the West and has developed across the generations in order to protect all our freedoms.
In the last months I have got to know many of the families of those detained by the United States. In Yemen I met with wives and children of detainees who did not know which way to turn to get information about their husbands. In the United Kingdom Mr Begg-the father of one detainee who is facing a tribunal in Guantanamo-said to me quite clearly, and repeated in public, "I do not believe my son is guilty but if there is evidence bring him before a properly constituted court of law and give him the opportunity of having a fair trial. If he is guilty he ought to be punished but he is entitled to be treated in accordance with International Conventions".
In recent months I have sat down with many influential individuals in the United States and discussed Guantanamo with them. Many are deeply ashamed that the country, their country-where the International Convention on Human Rights had its genesis-should depart so far from international standards.
The latest ruling by the Supreme Court is a small step in the right direction but in my opinion it is only a small step.
Individuals who have been described by American Political Leaders as "The worst of the worst" have been released, so clearly all cannot be guilty.
Detainees have now won the right to challenge their continued detention through the American Courts, but this is likely to be a lengthy process.
Meanwhile, whilst some of those detained may be guilty there will be others who are totally innocent.
The whole process is, in my opinion deeply flawed and is no way for a nation that claims to respect freedom to behave.
Let me conclude by saying that I have every reason myself to dislike terrorism. It is an evil and needs to be dealt with. How it ought to be combated must be the subject of another article.
All I can say now is that the Guantanamo way will encourage rather than deter and it ought to have no place in any of our societies where freedom and respect for law is considered to be of supreme value.

Terry Waite CBE has written the foreword to Guantanamo-What the World Should Know, by Michael Ratner and Ellen Ray, published in August 2004, by Arris Books. ISBN 1 84437 046-1.