Introduction
A few weeks ago, under a clear blue sky and in the bitter cold, Barrack Obama became President of the United States. In a sombre and profound speech, he addressed the challenges facing his country and the wider world in this new century.
These were, in his view, threefold. There were challenges of commerce, certainly, and challenges of security as well. But these elided into challenges of identity in its deepest sense. It was this, he implied, that was the most the most existential of all.
He characterised the position carefully. ‘We reject as false’, he said, ‘the choice between our safety and our ideals’. On television, the camera panned at once to the seated, motionless figure of George W. Bush, a private citizen once more. If he felt any reaction, he didn’t show it.
The group of lawyers I watched the inauguration with were less restrained. They responded with a spontaneous burst of applause.
But what did the new President mean, exactly?
We found out a little more two days later, when he signed his first executive order, signalling the closure within twelve months of Guantanamo Bay.
Flanked by distinguished Flag Officers, he said his order was:
‘Consistent with the national security and foreign policy interests of the United Sates and consistent with justice.’
He also said:
‘We shall restore the standards of due process and the core values that made this country great, even in the midst of war.’
Denis Blair, the retired Admiral who is President Obama’s choice as the nation’s top intelligence official, told Congress in the same week that he would require counter-terrorism programmes to operate:
‘in a manner consistent with our nation’s values, consistent with our Constitution and consistent with the rule of law.’
Of course we shall see, in the coming months and years, how all this plays out and what it really means in practice.
In particular, will there remain room, as some fear, for certain categories of coercive interrogation?
And what, precisely, will become of the Guantanamo detainees? If any of them are to be tried, in what fora and under what circumstances?
But even with these important provisos, the new President’s words were obviously of very great significance.
At the very least, even if they do not yet map a clear way forward, they signal a strengthening consensus in mainstream US politics that, looking back, important aspects of George Bush’s ‘War on Terror’ were calamitously misjudged.
That they handed a propaganda victory to the US’s enemies. And, worse, that they actually developed some of the forces ranged against the American people.
I think President Obama is clear that a limited and stained military victory in Iraq will not really change this. There is much ground to be made up.
What is the nature of the terrorist threat?
None of this, of course, is to deny that the threat posed by terrorism is real and serious. This is true in many parts of the world. But particularly in Britain, where we know that British terrorists are operating in our own country.
We know that there are British people living among us who are sympathetic to terrorist causes. London, of course, experienced the direct result of this on 7 July 2005.
It is also necessary to be clear that the precise category of threat that we face is actually new. Of course terrorism isn’t a new phenomenon. But this form is a little different.
It largely emanates from unaffiliated, loose-knit networks of individuals who think they are having a conversation with God. These conversations apparently incline them to use indiscriminate violence.
Indeed they are driven to seek, as an absolutely primary tactic, civilian casualties of the broadest and crudest kind.
The fact that their ultimate goals, apparently a worldwide caliphate, are global in nature and utterly unattainable only underlines their dangerous unpredictability.
The US response
Yet that said, we also need to understand an important additional risk carried by this new form of terrorism.
This is that it is obviously structured to tempt responses from us that betray precisely those ideals that President Obama spoke about in January.
In a ghastly sense, this is quite an intelligent design.
And you could say that, in this sense, the Bush administration, far from demonstrating strength and frontier vigour in confronting Osama bin Laden, fell for a sucker punch.
We see this in the way that post 9/11 rhetoric emanating from the highest reaches of the Bush Administration spawned knee-jerk legislation all over the world that was obviously and deliberately inconsistent with traditional rights.
Indeed, in some jurisdictions, legislation was enacted which was positively and purposefully hostile to those rights. Shockingly, and mindful of certain provisions of the Patriot Act, we might include the United States in this group.
It was as though some of the some of the values enshrined in the US Constitution, the ECHR and other critical domestic rights instruments were losing their status.
As though some of the freedoms they spoke of were no longer quite so fundamental. No longer so relevant.
By some peculiar, unnoticed process these rights had suddenly become a threat to citizens rather than a safeguard.
Many people argued at the time that this process of self-abnegation before threats of violence was a terrible mistake. An error of truly historic proportions.
The worst manifestations of this approach included the development of quite lawless parallel jurisdictions in three critical arenas: extradition, the treatment of suspects and imprisonment.
In these, quite deliberately, standard protections were no longer available. Suspects were removed from the civilising protections of criminal and constitutional justice and placed, instead, in quasi-judicial or even non-judicial fora deliberately hostile to due process.
They were transported secretly and quite illegally around the world. Usually into jurisdictions where abuse of detainees was routine and institutionalised. That’s why they were chosen.
And they were, the Department of Justice in Washington now admits, sometimes tortured there by Americans acting under clear and, I expect, unlawful US Presidential authority.
Equally lawless imprisonment followed.
Our House of Lords, in the leading case of Abassi, aptly described detainees at the US base in Guantanamo Bay as existing in a ‘legal black hole’.
They were there because, in the view of the Bush administration, they did not deserve any rights. They were beyond the pale.
Of course this approach was a categorical betrayal of the rule of law. So it is no surprise that it was democratic States themselves, whose continued existence depends upon respect for that same rule of law, that were the first losers.
In the eyes of hundreds of millions of people around the world, the legitimacy of democratic institutions was called into question.
Rather than the beacons we wanted them to be, our institutions became the epitome of hypocrisy. This was a major defeat for Britain and America and their allies. I think it was a defeat that made both countries and all their citizens less safe.
The British response
In the eyes of much of the Muslim world, of course, Britain was closely associated with American policy. Yet it is a stark fact that in the UK we continued to believe that we had avoided most of the US excesses, even after 7/7.
We were sure we had no torture memos. None of our law officers or senior prosecutors sought, as a matter of State policy, to undermine the Geneva Conventions or to dismiss their provisions as ‘quaint’. Indeed, on the contrary, they publicly strove to uphold these and similar instruments.
We did not have our own secret prisons, where those convicted of nothing were held in the dark and chained to walls. And the leading case of Mullen, we believed, continued to police the manner in which defendants must be brought lawfully and constitutionally before our courts.
In short, we believed we had avoided a descent from due process in spite of the fact that we plainly faced a significantly more dangerous internal threat than any existing within the North American continent.
So what was different in the UK? And have we British been dangerously complacent over our real role in an American War on Terror?
Let me deal first with the differences. I think they fell into four broad categories.
Firstly, I think that in spite of our government’s support for the Iraq invasion, and in spite of certain worrying legislative developments in our Terrorism Acts affecting, in particular, free speech issues, many government Ministers here were simply ideologically less inclined to depart from traditional norms of behaviour in what they, too, initially characterised as a ‘War against Terror’.
This wasn’t, of course, simply a matter of idealism. The British Labour Party faced more internal cultural constraints than those confronting the increasingly right-wing Republicans in the United States.
Dissent in our ruling party was small, but it was stubborn. It was well organised and it had significant extra-parliamentary support.
Secondly, there were other powerful, and sometimes surprising centres of opposition to radical repression, many of which were simply absent in the US.
Critically, one of these centres of opposition was to be found on the political right.
The Conservative Party in Parliament was not necessarily any great lover of the ECHR. But it didn’t love the more contentious anti-terror legislation put forward by the Labour government either.
In parliamentary battle, leading Conservative figures recharged their philosophical links to personal freedom and redeveloped an instinctive distrust of State power.
This extended to a suspicion of growing police power in the field of terrorism, which was, it must be admitted, in stark contrast to continuing Conservative support for strengthened State powers in more conventional areas of policing.
They believed, I think, that growing police powers in relation to, for example, young people on the street, may have been inconvenient to the young people targeted, but they did not threaten mainstream, law-abiding citizenry in the way that growing State security powers might.
In any case, the Tories were a much more effective bulwark than the sharply divided Democrats in Congress. And their natural majority in our second chamber made their opposition legislatively very significant. At the very least, with Liberal Democratic support, they could cause serious delay. With dissident Labour support, they could do serious damage.
Furthermore, with the exception of the Sun, the right wing press took broadly the same view. The Daily Mail and the Daily Telegraph, in particular, were forthrightly in favour of what they regarded as ‘traditional English liberties’- though these did not always extend to destitute foreigners.
Strikingly, these conservative publications, unlike their American counterparts, took a very cynical view of the ‘War on Terror’.
They concluded that the government’s justification for the invasion of Iraq was dishonest and they, too, distrusted the growth in State power represented by much proposed security legislation. They thought Labour was using an exaggerated security crisis to grow the power of government. For the Daily Mail, in particular, this was an ideological issue, and they wouldn’t let it go.
The battle lines over 42 days gave a good example of where these alignments might take us.
On one memorable occasion, I found myself praised on the very same morning in editorials in both the Guardian and the Daily Mail for arguing that we should rely on our traditional criminal law in fighting against terrorism.
Indeed my own organisation, the CPS, the country’s public prosecuting authority, took a strong stand in favour of due process and fair jury trial. We didn’t want vetted judges and special rules of evidence. We didn’t want a neutered law of disclosure. We didn’t want secret courts. We said so- and we publicly opposed the 42 days legislation.
Why did we do this? Well our position was not simply one of principle. It was also pragmatic.
At a basic level, we were sure that some of the proposals the government was putting forward were simply unnecessary.
They damaged our Constitution, they would strike at public confidence and we knew, as prosecutors, that they were not needed. We also well understood that, as practitioners in the front line, we could speak with authority. 42 days was a case in point.
But we also believed on a more fundamental level that it was naive and ahistorical to believe that increasingly sophisticated means of national and international policing and crime control, which were certainly necessary to meet terrorism, required a corresponding dilution of Article 6 fair trial protections to make them effective.
We thought that this message, implicit for a while in a good deal of governmental pontificating on terror, was, in fact, the very opposite of the truth.
We thought that the growing sophistication of international crime fighting actually needed to be bolstered and underpinned by the strongest constitutional safeguards for targets and for suspects as well. We did not believe, as Tony Blair memorably declared, that these civil liberties ‘belong to another age’.
We pointed to the outstanding contribution of the Police and Criminal Evidence Act 1984 to criminal justice and community confidence. This legislation improved beyond measure the quality of policing in our country, and therefore underpinned public and personal security.