The fact that British police have been bugging conversations between some suspects and their lawyers here in the UK has set off a legal firestorm and has opened the real possibility that terrorists and murderers like Ian Huntley might actually have to be set free because the trials that saw them convicted might be considered tainted.
A legal precedent has established that deliberate bugging of conversations with lawyers constitutes such an affront to the rule of law that trials should be halted and any convictions obtained overturned. The ruling, in the court of appeal in 2005, may mean that dozens of terrorist trials could be aborted and the Soham murderer, Ian Huntley, go free if allegations by a whistleblower that lawyers' visits with clients were routinely bugged at Woodhill prison are substantiated.This contrasts rather starkly with the military commission which has just been announced in the US, where six men will stand trial - and face possible death sentences - for conspiring to bring about 9-11.
US Secretary of Homeland Security Michael Chertoff has promised a fair trial for Guantanamo prisoners accused of organising the 9/11 attacks in 2001.
He was speaking to the BBC after six men, including alleged plot mastermind Khalid Sheikh Mohammed, were charged.
It seems rather extraordinary to me that Chertoff can talk of a fair trial for Khalid Sheikh Mohammed, who the US have already admitted to waterboarding. How can any confession obtained by torture possibly be used to bring about a fair trial?
Here in the UK, simply listening in to conversations between clients and their attorneys can be enough to have convictions overturned, so how can the case against Khalid Sheikh Mohammed even continue when it is a matter of public record that he has been tortured?
There are some who question even the timing of these cases coming before a military commission at this time:
We are promised an open trial:
The decision to use Mohammed and the others as guinea-pigs in a constitutionally dubious legal proceeding is likely to trigger a firestorm of anti-American sentiment in the Islamic world and spark a fractious domestic debate in an already highly charged presidential election year.
Concerns were raised last night of political interference by the White House in the military's decision to go to trial in the middle of an election campaign in which the Republican frontrunner, John McCain, has made the fight against al-Qa'ida central to his election bid.
"What we are looking at is a series of show trials by the Bush administration that are really devoid of any due process considerations," said Vincent Warren, the executive director head of Centre for Constitutional Rights, which represents many Guantanamo detainees. "Rather than playing politics the Bush administration should be seeking speedy and fair trials," he said. "These are trials that are going to be based on torture as confessions as well as secret evidence. There is no way that this can be said to be fair especially as the death penalty could be an outcome."
General Hartmann was careful to say that he wanted the trial proceedings to be "as completely open as possible", with lawyers and journalists present in the courtroom – barring the possibility of some closed sessions to consider classified information. He stressed that the men would be regarded as innocent until proven guilty, just as they would in a civilian court. And he promised to provide "every piece of evidence, every stitch of evidence, every whiff of evidence" to the defendants' lawyers so they would be fully able to prepare for trial.
This raises the question of why, if these proceedings are to be as open as Hartmann claims, that they are not taking place in an ordinary court of law? If they are to be open, what is the need for the military commission?
That did little to stop Clive Stafford Smith, the British lawyer who has worked on behalf of "enemy combatants" at Guantanamo, to issue a condemnation of the "kangaroo court". He said: "Anyone can see the hypocrisy of espousing human rights, then trampling on them. We will infuriate our allies who firmly oppose the death penalty. We will anger the world."I find the Bush administrations handling of this as breathtakingly dumb as I find the confession that British police were routinely bugging conversations between clients and their lawyers. The idea that someone like Ian Huntley could be released because of police illegality is appalling. Likewise, when one arrests people suspected of having carried out the worst terrorist attack ever on American soil, one would expect the people who have arrested them to do things to the letter of the law to ensure that no court ever overturns any eventual verdict or rules that the rights of the suspects have been violated.
The Bush administration went the opposite way, attempting to keep these men as far away from the law courts as was humanly possible. They still might not succeed.
The Supreme Court, which struck down an earlier version of the military tribunal system, is expected to rule before July on whether the protections of the US Constitution apply to them.Whatever happens at the Supreme Court, the Bush administration have scored a spectacular own goal here. If these six men have conspired to bring about 9-11 then nothing would illustrate better the differences between us and al Qaeda than these men facing a trial in front of a jury of ordinary Americans.
Instead, we have a tainted military commission where one of the suspects on trial for his life is already known to have confessed under the duress of torture. It's a bloody mess. And, if the US have genuine strong evidence against these men, it's a calamity that they were not convicted in a way that is seen by all to be fair.
Instead, like the bugging of conversations between lawyers and clients here in the UK, finding these men guilty appears to be more important than giving them a fair trial. In the UK such exuberance by the authorities might be so counter productive that known terrorists and murderers actually walk free. In the US it certainly means that the confession of Khalid Sheikh Mohammed will always be considered suspect.
If he has done a fraction of what they accuse him off, then their behaviour towards him has been counter productive and dumb.
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