Dispatches From the Dark Side: Why it remains relevant 15 years after its publication

In 2010, the book Dispatches from the Dark Side: On Torture and the Death of Justice was published by Gareth Peirce, a British solicitor. The book contains a series of 4 essays along with a introduction and a postscript about the war on terror and its impact on the rule of law in the UK.

Each chapter focuses on a different event during the war on terror and how the rule of law was undermined by the actions of the UK government:

• Chapter 1 focuses on the British men detained by the US in Guantanamo bay and the involvement of the UK government in their detention.
• Chapter 2 is about the trial of Al-Megrahi, the only person convicted of the Lockerbie bombing and the evidence that another group of people were actually responsible for the bombing.
• Chapter 3 compared the experience of British Muslims during the war on terror and Irish Catholics during the Troubles. -The final chapter is about the arrest and potential extradition of people from the UK to the US for terrorism related crimes and how the mechanisms of US terrorism law would violate human rights law in Europe.

Peirce argues that each event eroded human rights and the rule of law, both principles the government claims to be protecting by engaging in a war on terrorism. If you want to read the book you can find it here: https://www.versobooks.com/en-gb/products/2177-dispatches-from-the-dark-side.

Given that the events discussed in the book took place over 15 years ago, why is the book still relevant today?

• What all the events discussed in the book have in common is that the law itself was used to facilitate the human rights abuses and violations of the rule of law. The majority of the events discussed are either legal grey hole or a legal black holes.

• A legal black hole are “zones formally created by law within which, no recourse to the law can be made. A legal black hole is thus created when there is no legal control on the body exercising the power in question, leaving the decision-maker free to exercise their absolute discretion.”¹

• Legal grey holes are “questions of law which courts state that they do have the capacity to review; however, the review exercised is so light touch that it is essentially meaningless”.²

• For example, Guantanamo started as a legal black hole, chosen because it was outside of the US thereby allowing the Bush administration to claim US law did not apply there. As a result, they could detain people without charge or trial and torture them without the oversight of US courts.

• After several US supreme court cases, it became clear that some limited rights under the US constitution still applied in Guantanamo such as habeas corpus: the primary mechanism used to challenge unlawful detention in the US. However, the courts, as expected, heavily deferred to the government regarding their assessments of the national security threats posed by those detained there. In effect, the courts were applying a light touch review to the status of the them, thereby allowing people who had no links to Al-Qaeda or any other terrorist group to remain detained in a prison notorious for human rights abuses and torture. Guantanamo changed from a legal black hole to a legal grey hole, which is how it remains 23 years after it was opened.

Peirce discusses Guantanamo throughout her book but primarily in Chapter 1: Make sure you say you were treated properly and Chapter 4: Are we out Brothers Keepers?.

Donald Trump’s senior advisor Stephen Miller has stated the Trump administration wishes to suspend Habeas Corpus. Miller states “The constitution is clear, and that of course is the supreme law of the land, that the privilege of the writ of habeas corpus could be suspended in time of invasion. So that’s an option we’re actively looking at. A lot of it depends on whether the courts do the right thing or not,”.³

Habeas Corpus when translated from Latin into English means “you have the body.” It is a mechanism used against unlawful detention because it required the detaining authority to produce the person being detained and evidence supporting their detention to the court where the Habeas petition was filed.

The writ of habeas corpus has only been suspended four times in US history, most notably by Abraham Lincoln during the civil war. It was also suspended during efforts to fight the Ku Klux Klan in the 19th century in South Carolina, in the Philippines in 1905 and in Hawaii after Pearl Harbor.

This is the product of courts hearing Habeas petitions from those who are detained to either be deported based on 2 different grounds:

• 1- The Secretary of state has concluded they are a threat to the foreign policy of the US because they where involved in pro-Palestine activism. To be clear, such activism is protected under the 1st amendment: the right to freedom of speech.
• 2- They are accused of being a member of a gang and as a result will be sent to El Salvador’s notorious CECOT prison. The vast majority of those detained are not gang members. For example, one man was detained because he had a tattoo of a crown to honour his parents.

Miller argues because these cases are immigration cases, the courts that hear the Habeas petitions which aren’t immigration courts, lack jurisdiction. Habeas makes no distinction based on the reason for detention. It applies in all cases where the government is detaining a person. To suspend Habeas is to suspend the ability of people to challenge the grounds for detention.

Why is this of concern?

Habeas is the reason we know about Guantanamo.

Shafiq Rasul was a British national detained in Afghanistan during the American War on Terror. He was not associated with any terrorist organisation, he was British-Pakistani and like a lot of people when visiting Pakistan took a day trip into Afghanistan. Eventually he was transfered to Guantanamo bay. His family discovered his detention when the British Foreign Office contacted them on 21 January 2002, they found lawyers who could provide their US counterparts with the thing they needed to challenge the legality of detention on Guantanamo: a name. Said US lawyers then filed Rasul v Bush, arguing those detained in Guantanamo had the right to file a Habeas petition challenging the lawfulness of their detention.

His case was joined with Mamdouh Habib’s case which made the same arguments against Mr Habib’s detention. Each of their filings alleged that the government had not allowed the detainee to speak at all to friends, family or lawyers, and had not given him any hearing whatsoever on the question of whether he was an enemy combatant in the war. The first court to hear their case rejected it.Eventually Al Odah v. Bush ( a case representing the interests of 12 Kuwaiti men in Guantanamo) was joined to Bush v Rasul. It finally reached the US supreme court in 2004. Mr Rasul by this point has been released. However, hundreds of other men remained detained in Guantanamo.

The Bush administration argued Guantanamo was in Cuba and outside the jurisdiction of the US therefore the supreme court couldn’t hear the case. The court heard it anyway and found the men had the right to challenge their detention as Habeas jurisdiction existed over all places under the sovereign’s control. That included Guantanamo, as it was inside US naval base in Cuba and therefore under US sovereign control.

To quote Peirce on Rasul v Bush:

The argument that won in Bush v Rasul was:

“prisoners… should have access to legal remedies and to lawyers who could, most importantly of all, for the first time go in and, bit by bit, bring out reports, not just of the physical and mental horrors inflicted by or on behalf of Americans, but the complicity of this country (at every level) in their unlawful captivity. We were never mean to know any of this.”

We know what happened because of Habeas Corpus. Without it, we would not know the names of the 800 men detained there. Lawyers would not have been able to tell the world of the torture they experienced at the hands of the country that calls itself the leader of the free world. Worse of all the men might still be there because the campaigns to end Guantanamo might never have started. We would never know that our government, the UK government, was complicit in the crime of torture.⁴

To suspend Habeas protection as Miller would like to, is to deprive people subject to the control of the US from the protection of the law. Suspending Habeas created a legal black hole, a place devoid of law where all manner of human rights abuses can occur in the dark, without oversight of any kind. This would mean access to law is no longer a right, it is a privilege. A privilege that the president of the United States can take away. As Elie Mystal, a lawyer and legal commentator, would say: There is not a coming constitutional crisis in the US. We are in a constitutional crisis and America, in his view, is a fascist dictatorship.⁵.

Peirce’s book tells us how governments use the law to undermine the law by creating spaces without any or with very little legal oversight. This has time and time again, allowed the executive to violate the fundamental rights of human beings such as the right not to be tortured and to avoid accountability. The architects of the crimes she discuses such as the President of the US at the time: George Bush and the Prime Minister of the UK: Tony Blair remain free men to this day.

The title Dispatches from the Dark Side is a warning, from a solicitor who knows because she has represented hundreds of people who found themselves in a legal black or grey hole, as to what happens in the dark, where the law and oversight does not exist. The subtitle of the book refers to the death of justice. To suspend Habeas is to kill justice because without it, there is no way to know who is detained by the government, on what grounds and what conditions they are being held in.

Millers argument is nearly identical to the argument made by Bush administration. Let us hope the US supreme court will reject it, as they rejected it in Bush v Rasul in 2004.

Regards

IMI