An image of U.S. lawlessness.

"Guantanamo Bay must be one of the lowest points in the
distinguished story of United States jurisprudence."
(Lord of Appeal Johan Steyn speech in Ottawa, Oct. 2.)

President George W. Bush's Thanksgiving trip to Baghdad was a brilliant, and stylish, exercise. He was signalling that the U.S. is not going to cut and run. He was boosting the morale of the troops. And, of course, he was discomforting the Democrats.

Now Bush needs to do something much more difficult. He needs to go to the U.S. base at Guantanamo Bay in Cuba. Some 600 Taliban and Al Qaeda prisoners are being held there, most for two years, and all without trial or charge or legal counsel or any visitors except the occasional Red Cross representative.

Bush doesn't need to go there physically and obviously will not. He needs to go there imaginatively and intellectually.

Democracies are slow to go to war. But once engaged they often fight not merely as hard as their enemies, but like their enemies.

By the end of World War II, the Allies, in the firebombing of Dresden and of many other German and Japanese cities, were undoubtedly guilty of war crimes. The U.S. in Vietnam, the French in Algeria, the British in Northern Ireland committed comparable crimes.

Two excuses exist. Necessity, that fire can only be beaten by fire, or terrorism by counterterrorism. In addition, as argued by U.S. lawyer Alan Dershowitz, using torture to extract information from a known terrorist can save innocent civilian lives.

The other argument is subtler: The circumstances are temporary and exceptional, so that the actions will have no lasting effect.

There's a lot to this. Democracies are, well, democratic. While Canadian civil libertarians were appalled by Pierre Trudeau's invocation of the War Measures Act to halt terrorism in Quebec in 1971, Trudeau went on to enact the unprecedented, progressive Charter of Rights and Freedoms. In two respects, Bush's war on terror doesn't fit past patterns.

The war itself may well last decades, much like the Cold War. These transgressions are being done in full public view. (The full scale of French crimes in Algeria has only become widely known, almost 40 years on, by a book just published by one of the generals involved.)

The deformation of, the official treatment of, and public attitudes toward, civil rights in the U.S. thus may well be deep and permanent.

Other democracies risk being infected. It's only belatedly that prime minister-to-be Paul Martin has recognized the seriousness of the Maher Arar affair. It is serious - "unacceptable" in Martin's phrase - that the U.S. should have deported this Syrian-Canadian to Syria to be tortured. It's no less serious that Arar was taken into custody at a U.S. airport because of information passed down by Ottawa.

Last month, Johan Steyn, one of Britain's most distinguished jurists, gave a major lecture in Ottawa. To his main text - about the relationship between Parliament and the courts - Steyn added a personal cri de coeur.

"There is no rule of law in Guantanamo; that is the whole idea," Steyn observed of the U.S. legalism of using the fact that the prisoners did not wear uniforms as justification to exclude them from the protections of the Geneva Convention.

Instead, they are to be tried by secret military tribunals with the power to impose death sentences. There was not "a vestige of legitimacy in domestic or international law," to this interpretation, said Steyn.

Steyn quoted an American authority's observation that these procedures "are the kinds of trials one associates with the most lawless totalitarian regimes." He then asked the essential question: "What must authoritarian regimes, or countries with dubious human rights records, make of the example set by the most powerful of all democracies?"

The war on terror is an excruciatingly difficult one for democracies. The terrorists are not merely prepared to do anything for their cause, including gladly dying for it, but make no distinctions between the guilty and the innocent, between soldier and civilian. Nor even, since they've killed more Muslims than westerners, between them and us.

Bush is neither an intellectual nor an imaginative individual. On America's last great national holiday, July 4, though, he described his country as a "beacon of hope" to others in the world. It was certainly true - once.

Today, Bush is projecting outwards an image of American lawlessness.

Eventually, the war on terror will be won, although it will be long and hard. But it will be a Pyrrhic victory if, by then, the U.S. and other democracies will have lost, or at best have compromised, the rule of law that is democracy's essence.

[Source: By Richard Gwyn, The Toronto Star, 30Nov03]

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