Monday, 15 December 2014

Harry Potter and the prisoner of Jersey

The most interesting historical parallel of my week came from the barrister Harry Potter,* who presents the BBC documentary series, The Strange Case of the Law. He was talking about the fallout from Oliver Cromwell's unsuccessful attempt to try the Leveller, John Lilburne, for sedition in 1649.

Lilburne had mounted his own defence with great skill and had managed to get himself acquitted, much to Cromwell's annoyance. To spare itself the embarrassment of further legal defeats, Cromwell's government had Lilburne seized and whisked away to the extra-territorial stronghold of Mount Orgueil Castle in Jersey, where legal niceties like habeas corpus didn't apply, leading Potter to call Jersey 'Oliver Cromwell's Guantánamo Bay.'

It's an interesting parallel, given the current disclosures about the CIA's use of extraordinary rendition  to circumvent legal protections (along with the absence of disclosure about alleged British complicity).

Then and now, the rule of law matters and sneakily moving the goalposts to get the result you want is an abuse of that important principle, whether the state is offshoring torture or re-defining criminal suspects, or prisoners of war as "unlawful combatants" in order to do things like holding them  incommunicado, indefinitely and denying them access to counsel.

I'm left wondering whether this sort of authoritarianism by stealth is the sort of gambit which particularly appeals to would-be tyrants working in relatively open societies with rhetorical, or theoretical committments to liberty, who are made uncomfortable by the scrutiny that such openness brings. The Land of the Free has its First Amendment and the English Commonwealth styled itself a champion of liberty and was born in the wake of a national upheaval which had seen the collapse of censorship and an explosion of cheap pamphlets voicing all sorts of heterodox opinions.

Maybe some form of out-of-sight-out-of-mind external rendition is the way to go for authoritarians governing relatively open societies, who can't just clamp down directly, unlike autocrats with no pretentions to liberty, who could be sure that people who knew what was good for them wouldn't make too much fuss about other people being locked up the Lubyanka, the Špilberk or Carabanchel and had no need of a Guantánamo, or Devil's Island, with internal exile to Siberia just a few days away by unheated cattle truck.

Extra-territorial rendition from from a society  that claims to be free and open is a form of hypocrisy, which you might see as a sort of back-handed compliment to the freedoms that The War Against Terror is ostensibly being fought to uphold (although I'm guessing that this thought didn't come as much of a comfort to Liburne in his damp prison cell on Jersey, or to the recipients of enhanced interrogation techniques in their far-off legal black holes). As one cheese-eating surrender monkey steadfast ally in The War Against Terror once more or less wrote, hypocrisy is the tribute that vice pays to virtue.

*I almost feel as if I should apologise for the title of this blog post - I couldn't resist, but the poor guy must be sick to the back teeth with all the lame wizardry gags he must have had to put up with to ever since J K Rowling linked his perfectly ordinary name with young adult fiction's biggest ever mega-brand.