Sir John Fielding and Guantanamo

Gracchi offers a review of new work by Professor John Beattie on Sir John Fielding's contribution to the British justice system and the contemporary response to the challenge his changes posed to liberty.

"Its interesting as a last thought to reflect upon what this says about our current system- the Prime Minister and Head of the Metropolitan Police (chief police officer in the UK) continually tell us that we see new threats and need new ways to prosecute and police those threats. It may be that at the same time, just as in the eighteenth century, we as private citizens and therefore potential defendents need new rights to counter new prosecutions- perhaps in matters like data protection you can already see both trends taking place, government now holds a great deal more information about us and we now have rights to see that information."

I think that the emphasis on new rights here is important. Too often people are distinctly unimaginative in these debates and tend to resolve the question down to old rights versus new threats. The reality is often that the old liberties are no longer useful or appropriate in changing circumstances and this is the reason they are no longer protecting the vulnerable from overzealous attempts to confront new threats.

Guantanamo seems a prime example. A common refrain is that they should be afforded the protections of the Geneva Protocols. However, these protocols were never designed to be granted to anyone the military happened to pick up. A few of the conditions placed upon gaining Geneva protection:

• That of being commanded by a person responsible for his subordinates.


• That of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I).


• That of carrying arms openly


• That of conducting their operations in accordance with the laws and customs of war.

Geneva protection is, therefore, the reward to staying within the social contract which is the rules of war. If it is granted to those who pay no heed to its laws then that social contract can be expected to break down.

Perhaps more convincingly for those who want to see extra protection for inmates there is little imperative to quickly try and release those captured on the field of battle. This is for fairly obvious practical reasons; do you think we could have assembled a case against many of the PoWs we held during WW2? The basic environment required for evidence gathering is not present. We also often do not have the right to try them merely for being the soldiers of our enemy or committing crimes in foreign countries.

Instead Prisoners of War are prosecuted or released at the end of the war (except in exchange situations but these are matters of diplomacy rather than law). However, this is clearly not going to be a humane solution in a War on Terror which is unlikely to end so neatly. Prisoner of War status could well be a recipe for indefinite detention for many of those captured.

Equally, domestic law cannot apply to those at Guantanamo because, although they are not Prisoners of War, the same restrictions on the ability to gather evidence and prosecute a trial are present. Many of these people, under the standard of domestic law, should not be held but it is utterly unrealistic to hold a state fighting a war and dealing with foreign enemies to the same standard it is expected to afford its own citizens. This is neither true to the historical norm nor conducive to the slightest military efficacy.

What is clearly needed is some new liberties which we grant to those who do not deserve the honour of the status of Prisoners of War but do deserve some basic human dignity. The failure of the Bush administration, as I have noted before, is that it has made no attempt at creating new liberties but has, instead, ignored the problem. Those who condemn the Bush administration for its record on foreign prisoners should not pretend that its failure has been to defend existing liberties but that it has not done the work of an enlightened government in defining new ones.