Corin Redgrave: Britain's detainees must be returned from Guantanamo

Moazzam Begg, a teacher, had one ambition. He wanted to teach poor children in an underdeveloped country. He chose Afghanistan. Born in Britain, with a UK passport, he left this country with his wife and three small children in the spring of 2001. While waiting for permission to begin teaching from the Taliban authorities he joined a programme sinking tube wells for local villagers. Then came 9/11.

On the night of 2 February 2002 Moazzam was dragged from his bed by two Pakistani security service agents and two CIA officers and bundled into the boot of their car. He was abducted to the vast sprawling prison at Bagram near Kabul where he spent the next year in detention, half starved, with all his fingernails extracted, hardly seeing the light of day. In the spring of this year he was transferred by plane, blindfolded and shackled, to Guantanamo.

Moazzam is one of the 650 detainees whom their captors call "illegal combatants", a definition unknown in international law. By law, of course, their status ought to be determined, and Geneva Convention III.5 lays down such a procedure. The US has incorporated the procedure in its army regulations: "All persons taken into custody by US forces will be provided with the protections of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War until some legal status is determined by a competent authority."

These provisions were drafted so as to prevent what has happened to Moazzam and hundreds of others, innocent civilians caught up in the chaos of war and dragged into captivity. In an investigation by Newsweek the reporters say that of the Kuwaiti detainees whose cases they were able to follow, most were "little more than volunteers for their society's version of faith-based charities, who wanted to help Afghans suffering from drought and famine and then from the war, but discovered, once the conflict began, that they could not get out".

For the first time in history the US court has ruled that people jailed by the US government with no rights whatsoever cannot even petition the court to consider their claims. To arrive at this ruling the District of Columbia circuit court twisted a precedent, Johnson vs Eisentrager, to make it mean that aliens could be held indefinitely without charge, without right to counsel, and without access to any judicial oversight or review.

The dangers of this ruling can hardly be exaggerated. For more than 200 years American courts have been the guardians of the country's legal principles, empowered to test the legality of the government's actions. The DC circuit court decision relieves Bush's administration of any obligation to explain its actions or justify them.

Donald Rumsfeld saidthe prisoners would stay in Guantanamo "until the war on terrorism is over". Some prisoners may be tried by military tribunals, he said, "but our interest is not in trying them and letting them out. During this global war on terror, our interest is in keeping them off the streets, and that is what we're doing".

The DC district court's decision rests on a technicality. The 45 square miles of Guantanamo Bay were leased by Cuba to the US for perpetuity in 1903, revocable only by agreement of both parties. The US has jurisdiction and control but not sovereignty over the territory.

It is the flimsiest of pretexts. American laws apply on Guantanamo to every other man, woman and child. US citizens and non-citizens alike are governed there by US civil and criminal laws. Even an animal on Guantanamo is protected by US law from wanton cruelty, and anyone who violates such law is subject to the penalties prescribed by law. And thus, as the US attorneys who petitioned the court on behalf of Kuwaiti detainees observed, a Cuban iguana has protection against cruelty on Guantanamo, but not the detainees.

Belatedly the US Supreme Court has aroused itself to the extraordinary dangers of the lower courts' decision, and has voted for a judicial review. For the prisoners this offers a thin ray of light. For the British Government it offers acute embarrassment, because they will have to make a submission on behalf of the nine British detainees, and will have to rest that submission on the application of human rights law to their citizens, and on the unlawfulness of their coalition partner's conduct.

Why have they not done so before? The British Government is reluctant to accuse the American government of breaking the law in its detention of aliens because it is doing the same thing itself. Britain also holds aliens, without charge, indefinitely, in prisons such as Belmarsh, on British soil. The only difference is that George Bush's regulations were drafted after 9/11, whereas ours are contained in the Terrorism 2000 Act.

In the discussions preceding George Bush's state visit there will likely be some further concessions for the British detainees. If real enough they will be welcomed by the detainees and their families. But they will also serve only to emphasise the extent to which both governments have sacrificed human rights and civil liberties in pursuit of their terrible war on terrorism. Only the freedom and return to Britain of its citizens can satisfy anyone who believes in justice and law.

The author is organising a symposium on Guantanamo and human rights, chaired by Helena Kennedy, in London on Sunday 23 November. (www.peaceandprogress.org)