800 Years of Magna Carta: The Stench of Hypocrisy Regarding Habeas Corpus for Shaker Aamer and Other Guantánamo Prisoners

Sometimes the stench of hypocrisy is so overpowering that one wonders how those mired in it can avoid gagging while they deliver their outrageous lies.

That was the case today in Runnymede, west of London, where, 800 years ago today, the barons of England forced King John to sign Magna Carta (the Grand Charter), a document that arose out of their anger at being made to pay for the king’s foreign wars, and which, significantly, limited his power.

Its most famous clause — Clause 39 — introduced habeas corpus to the world — the right not to be imprisoned without a fair trial. It states, “No free man shall be seized or imprisoned … except by the lawful judgement of his equals or by the law of the land,” and its lasting significance is generally considered with Clause 40 as well, which states, “To no one will we sell, to no one deny or delay justice.”

In today’s Guardian, Owen Bowcott noted that clauses 39 and 40 “are jointly seen as embodying what have become the rights of habeas corpus — banning arbitrary detention — and trial by jury,” although, as he noted in response to the question, “Why do Americans revere Magna Carta far more than the English?”:

Magna Carta was resurrected by the 17th century chief justice, Sir Edward Coke, as an ancient source of rights and it was deployed in legal battles to resist excessive royal powers. Early colonists took Magna Carta and wrote their interpretation of its clauses into their founding charters.

“Coke, who was widely regarded as the most learned lawyer of his day, rescued Magna Carta from obscurity and transformed it from a somewhat technical catalogue of feudal regulations into the foundation document of the English constitution,” [Lord] Sumption [who is a British Supreme Court Justice and a medieval historian] said. “It is really Coke’s idea of Magna Carta that has been exported to the world, and not the version that King John or his barons would have recognised.”

Significantly, of course, the right not to be arbitrarily imprisoned only applied initially to a small and privileged part of the population, and it was not until the 17th century — as Lord Sumption noted — that the procedure for issuing a writ of habeas corpus was first codified, in the Habeas Corpus Act of 1679, and further struggles were required before the right not to be arbitrarily imprisoned applied to everyone, whatever their sex or status.

It has, of course, occasionally been suspended, when the authorities have claimed that there is some sort of unprecedented emergency. In the Second World War, the US suspended habeas corpus for 110,000 Japanese Americans who were imprisoned in internment camps, only apologizing and offering compensation many years later.

More recently, after the terrorist attacks of September 11, 2001, the US claimed that those seized in its “war on terror” could be held without rights — at Guantánamo and in other facilities, as well as in “black sites” run by the CIA — and although the prisoners were eventually granted habeas corpus rights by the Supreme Court, in Rasul v. Bush in June 2004, Congress then passed legislation designed to curtail these rights, in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, and it was not until June 2008, in Boumediene v Bush, that the Supreme Court ruled that Congress had acted unconstitutionally, and once more granted the men habeas corpus rights.

Although the Boumediene ruling led to 38 prisoners having their habeas corpus petitions granted by judges, in a series of rulings in 2010 and 2011, the appeals court judges — in the D.C. Circuit Court — vacated three of those rulings, reversed three others and, most importantly, changed the rules regarding the habeas petitions so that the lower court judges had to give a presumption of accuracy to whatever information the government came up with that purported to be evidence — however ridiculous it may have been.

As a result, no habeas corpus petitions have been granted since July 2010, effectively gutting habeas corpus of all meaning for the Guantánamo prisoners — and when the Supreme Court was repeatedly given the opportunity to challenge the Circuit Court’s rulings, they refused to do so.

And so, on the day that Magna Carta — and habeas corpus — was so lavishly celebrated at Runnymede, by the Queen, by David Cameron and by Loretta Lynch, the US Attorney General, who flew in for the occasion, the stench of hypocrisy primarily related to the 116 men still held at Guantánamo, and, on the British side, to Shaker Aamer, the last British resident in the prison. In Shaker’s case, he has the support of numerous groups, individuals and organisations: MPs, who set up a Shaker Aamer Parliamentary Group, tabled a Parliamentary motion that was supported by the government, and visited the US last month to call for his release, the Daily Mail, and campaign groups — We Stand With Shaker, which I established with Joanne MacInnes last November, and the Save Shaker Aamer Campaign.

These are men who are still so thoroughly deprived of their rights that there is no mechanism that can automatically lead to their release — no sentence to come to an end, because almost all the prisoners have never been charged or tried, and no end of hostilities, because they have never been held as prisoners of war according to the Geneva Conventions.

Only political will can secure their release, and with opposition from Republicans, and an unwillingness to spend political capital on President Obama’s part, 51 of the 116 men still held — including Shaker Aamer — continue to be held even though they were approved for release over five years ago by the high-level, inter-agency Guantánamo Review Task Force that the president established shortly after taking office in January 2009. Moreover, some of the men, like Shaker Aamer, were approved for release under President Bush years before — in 2007, in Shaker Aamer’s case.

So to hear David Cameron talk of the importance of Magna Carta on its anniversary, and to try to bask in its reflected glory, is hypocrisy of a particular stinking variety, not just because Shaker Aamer remains imprisoned in Guantánamo, but also because a number of foreign nationals have, in some cases, been held for over 13 years in the UK without charge or trial — sometimes in prison, sometimes under forms of house arrest — on the basis of secret evidence that cannot be tested, and without any figure of authority ever having spoken a single word to them, or asked them a single question. See some of my many articles here, here and here.

In addition, of course, under David Cameron, measures have been introduced to strip people of their citizenship, with no legal process whatsoever, if they are suspected of terrorism by the security services and by the home secretary, and the Tories’ latest wheeze is to scrap the Human Rights Act, a proposal of such idiocy that, for it to proceed, we would have to withdraw from the European Convention on Human Rights, the Council of Europe and the EU, even though Tories were deeply involved in drafting the Convention after the Second World War.

In his speech, David Cameron had the nerve to say:

Eight hundred years ago, on this day, King John put his seal to a document that would change the world.

We talk about the ‘law of the land’ and this is the very land where that law – and the rights that flow from it – took root.

The limits of executive power, guaranteed access to justice, the belief that there should be something called the rule of law, that there shouldn’t be imprisonment without trial, Magna Carta introduced the idea that we should write these things down and live by them.

With legal aid and judicial review threatened or being shut down by Cameron’s government, and Shaker Aamer abandoned in Guantánamo, there wasn’t a line in the above that rang true, and later in his short and profoundly cynical speech the Prime Minister also spoke about the government’s current plans, pretending that his plans to destroy our rights are actually some sort of necessary reform.

“But here in Britain, ironically, the place where those ideas were first set out,” he said, “the good name of ‘human rights’ has sometimes become distorted and devalued. It falls to us in this generation to restore the reputation of those rights — and their critical underpinning of our legal system.”

In response, as the Guardian reported:

Amnesty International UK’s head of policy and government affairs Allan Hogarth said Cameron’s use of the anniversary of Magna Carta to justify scrapping the HRA would “have those 13th-century barons spinning in their highly-ornate, lead-lined coffins”, adding: “Any move to scrap the Act would be a real blow for human rights in this country and around the world.”

As the Guardian also noted, Liberty’s director Shami Chakrabarti “accused the prime minister of hypocrisy” following his speech. She said, “The Prime Minister could give a masterclass in bare-faced cheek, using Magna Carta day to denigrate our Human Rights Act. But we will take no lessons in rights and freedoms from a leader ‎who wants to dilute them to the detriment of everyone in the UK and wider watching world.”

Loretta Lynch was more low-key, but even so it was impossible for her to discuss Magna Carta without the spectre of Guantánamo hovering over her.

She noted that the fundamental principles of the Magna Carta have “given hopes to those who face oppression. They have given a voice to those yearning for the redress of wrongs” — and I’m sure those still held in Guantánamo, if they ever get to hear her words, will agree that they are “yearning for the redress of wrongs,” but that, despite the show in Runnymede today, they actually have no voice, and no expectation that fine words will lead to them being freed or receiving anything resembling justice.

On the 800th anniversary of Magna Carta, the 51 men approved for release in Guantánamo — including Shaker Aamer — and the other 65 men (except those facing trials), who are all still held deliberately without charge or trial, deserve better; in fact, deserve the freedom from arbitrary detention that was promised in Runnymede 80 years ago. Free them now!

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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