Clive Stafford Smith: This plan just perpetuates the prisoners' legal limbo

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The Independent Online

In November 2003 Lord Steyn launched a scathing attack on the "justice" being meted out to prisoners in Guantanamo Bay. He tarred the military commission process as a "kangaroo court". How could a tribunal that applied retrospective laws, with a hand-picked military judge presiding over a hand-picked military jury, admitting coerced evidence, with no appeal to the federal courts, possibly satisfy the right to due process, fundamental to any country that would call itself civilised?

Some years later, during his election campaign, Barack Obama agreed, albeit in more judicious terms. Once elected, President Obama made his first act in office the promise to close Guantanamo Bay, and begin to erase its stain.

Until now. The same president has signed an executive order reinstating commissions, and legalising indefinite detention without charge. Indeed, in one critical aspect, the new regime is even worse than the old: instead of an annual review of a prisoner's status, Obama decrees that reconsideration is required only every four years.

Some 172 unfortunate detainees are left in Guantanamo, among them several represented by Reprieve. Most of our clients have been cleared for release by the US authorities, some for several years, but they are unable to leave, because they fear torture or imprisonment in their native countries. Obama's proposal enshrines their limbo in law.

Others will inevitably face the new military procedures – which mirror the Bush administration commissions in every relevant respect. The military courts will still be gerrymandered. Everyone will be charged retroactively with offences that simply did not exist in the law of war before the Bush administration made them up. Coerced evidence will be admitted – indeed, the sole reason to deny a prisoner the right to a proper court is to cover up the crimes committed against him.

More now than ever, Western governments are encouraging countries we deem to be "less developed" to embrace democracy and the rule of law. Yet if Colonel Gaddafi selects a small Mediterranean island to imprison those he identifies as al-Qa'ida terrorists, and denies them legal rights, where will we find the moral high ground from which to complain?

The author is founder and director of Reprieve