Published on Webdiary - Founded and Inspired by Margo Kingston (/cms)

Guantanamo Habeas Corpus- the road to freedom

By Paul Walter
Created 14/06/2008 - 22:01

The U.S. Supreme Court's decision to grant Guantanamo prisoners the right to challenge the legality of their imprisonment has enormous ramifications.  Not the least of these is that David Hicks' incarceration in a South Australian jail is now likely to be wrongful and false imprisonment, and that the government who put him there will most likely be, by the time this goes to court,  the only active participator in the Guantanamo war crimes still holding political power at the time of the overturning of their actions.

Paul Walter's Webdiary debut piece Perverts in the shrubbery [0] was the launch pad for a hot contest of ideas.  Given that this community contains supporters and denouncers of Guantanamo, the opinions regarding this landmark decision should be interesting.


A friend mentioned this 5/4 US decision a little while ago and my immediate reaction was that this was a final, formal repudiation of the last neocon decade, with its vaguely worded, questionably motivated laws as much about setting of precedents and protecting the guilty more than the innocent, with plausible deniability replacing presumption of innocence as the underlying legal principle.

And this, after all, was a conservative high court, stacked with Bush appointees, not something akin to the Mason activist effort of the Australian 1990's.

No more funny legal "spaces" in which to hide people from habeas corpus on nothing more than some arbitrary prejudice or worse still even, corrupt need, of some fallible political authority. No further doing away with of common law rights on the coat tails of a bogus "terrorism" excuse operating as an excuse for the corruption under darkness of a Cheney or Bush; Haliburton or Wackenhut.  Government now should fit in with the law- not the other way round.  Certain principles remain prior to expediency.  Breathtaking.

The thin, fragile, wavery line that distinguishes democracy from something akin to Pol Pot or Pinochet is, at the eleventh hour, reaffirmed by the court.   There are certain positions that are just not negotiable.  That is the point those sceptical of Henson were making as to young people being protected: whatever tinkering happens at the side, the law should have a guaranteed minimum or default as to kid's protection.  Others, of course felt that there were other issues of freedom of speech,  when it was unclear as to actual threat as to the example cited (Henson),  but the argument remains the same.

With Detentions, Gitmo, ( Haneef locally )Hicks etc, there seems a clear-cut and quite malicious transgression of a basic right to legal representation, presumption of innocence and humane conditions of detention; should a case require examination.  Particularly if evidence is not readily available and in effect there is some sort of "fishing expedition" going on, instead. That is, when the authorities are hoping for something to "turn up" in a situation short of serious evidence, in effect on a hunch or more frankly, a bias. In Haneef's case it could be argued (no doubt only by a cynic) that the fellow was detained on trumped up charges, when the authorities knew the allegations were specious, but could bend a deliberately vaguely worded piece of legislation based on British and US precedents, to please their political masters by bending the law, to yield up a pre-election scapegoat, a reason bearing absolutely arguably no relation to "security", whatever.  That is surely a dangerous abuse of the intent and spirit of the law if even remotely true.

There have been complications over time concerning detention of those seeking refugee status in the light of UN laws and procedures concerning refugees. Were these folk held for political opportunist reasons when there was no threat, as part of a populist push to retain power using racist scapegoats, Or was Howard only seeking to ensure that the newcomers were indeed refugees and the government had the right to determine their identities, etc, in the way they did?  Like wise was, or could, Gitmo and the accompanying suspensions of common law justifiable in the face of a real threat, or merely operational as a McCarthyist political gimmick?

With terrorism, do we stick to our guns and refuse to abandon the principles we beleive makes our civilisation the best, even to the point of risking lives through terrorist attacks, and perhaps additionally hope there is maybe a kinder god than us running the universe?  Or does pragmatism have a place?  Should certain legal principles remain unalterable and sacrosanct and does their "bending" set a precedent that can lead to totalitarianism?

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