From the Folks Who Brought You the Common Law

From the London Telegraph, December 8, 2007: "Meanwhile, in an interview with BBC Radio 4's Today programme, the former Attorney General Lord Goldsmith said that whether or not the men were dangerous was less important than the rule of law. 'I don't know [whether they're dangerous or not]', he said. 'I do think that [there is a] principle here which is more important. It is not the question of assessing danger or not, which we have to deal with as we have to deal with other people in this country. The principle is fundamental civil liberties. You cannot have people detained for years on end and with no end in sight on the basis of the philosophy the US uses.' He also said that Guantanamo Bay prison should be closed, as it is a 'recruiting sergeant' for terrorists."

Such were the comments of a learned British lawyer asked to comment on the release of four British subjects from the Guantanamo prison camp. Three of the prisoners (from Algeria, Libya and Jordan) will return to Britain; the fourth will be repatriated to his native Saudi Arabia. Lord Goldsmith refers to the "philosophy the US uses" without explanation, but presumably he means the converse of the philosophy he supports: the question whether the men are dangerous "is less important than the rule of law."

I think that used to be the American position on civil liberties prior to the Bush Administration. I have opined before that the concept of the "presumption of innocence" was an application of the scientific method, and Enlightenment ideas generally, to the field of criminal law. As in science, one begins in common law criminal jurisprudence with the idea that the outcome is unknown, and that therefore, in order to assure fairness and to avoid inflicting punishment in advance of the proof, society hazards a little danger in permitting suspects the presumption of innocence. If, in some cases, the danger of allowing the suspect to remain at large seems too great, the defendant is nevertheless assured, by the Fifth Amendment's due process clause, to a speedy trial and determination of his guilt. Overall, this approach served us well for the first 212 years of our nation's history. Not perfectly, but I would say that in the pre-Bush years, our legal system was second to none in the world.

It does not seem hyperbolic to equate the religiosity of the Bushians with their rejection of such Enlightenment ideas. Indeed, the growing theocratic movement in the U.S. does not bode well for the Bill of Rights. As with the a priori assumptions of religion in general, Bush proceeds on the premise that the arrest of the inmates at Guantanamo implies their guilt; if they weren't guilty, why were they arrested? What are they doing in a prison camp like Guantanamo if they're not dangerous? That's about as far as the U.S. "philosophy" goes. Essentially, it is the philosophy of not caring much one way or the other. Since the war on terror is "generational," and since nothing in the Guantanamo enabling legislation (the Detainee Treatment Act or the Military Commissions Act) actually requires a trial, at any time for anyone, the fact of arrest may mean perpetual incarceration in a prison camp without recourse.

If there is a distinction between this approach to "enemies of the state" and the Stalinist gulags, where prisoners were sent to Siberia forever, it must be very subtle. Perhaps a smart British jurist could figure it out. The silence from Congress, or from the presidential candidates, on these problems is complete. Arguing for civil liberties for prisoners Bush has labeled "terrorists" is a kind of political third rail in America. That's a very dangerous sign for all of us. It is not coincidental that coverage of such matters is found on the front page of a British newspaper, and not here at home.