We are hearing a lot about the proposed revised Anti-terrorist Law in Canada and similar laws in the United States. In particular the continuation of the denial of the right to a fair trial to prisoners in Quantanimo Bay Prison in Cuba, and the suspension of the Fourth Amendment right to privacy in the Edward Snowdon snooping controversy .
As with so many facets of the interaction of democratic government with its citizens, there is a lot of smoke and fire and little common sense in the continuing dialogue. I suggest the reason for this is two-fold. First because there is a basic misunderstanding of our basic rights under British Law, or, in the case of the United States, the Constitution, and second because we are not being provided with the information to determine if the suspension of these rights is justified.
Habeas Corpus, one of the most basic rights at English Common Law, was incorporated during the reign of Henry 2nd ( not by the Magna Carta as commonly supposed) by means of the following language ” “The King is at all times entitled to have an account why the liberty of any of his subjects is restrained whenever that restraint is inflicted”
It is technically only a procedural remedy. It is a guarantee against any detention that is forbidden by law, but it does not protect other rights such as the entitlement to a fair trial. So if an in-position such as internment without trial is permitted by law then habeas corpus may not be a useful remedy.
Law can, and frequently does, over-ride Habeas Corpus and make a mockery out of certain other inalienable rights As in times of war. The problem is that the meaning of War has changed. Used to be War meant a whole nation. Now apparently it applies to individuals or small groups of individuals, or even products such as drugs.
Democracy is dependent on enlightened debate upon the merits of the facts as they are, NOT on some of the facts, as they appear.
Debate is being stifled by redaction of the facts due to National Security concerns. So we are left wondering if draconian measures are truly warranted. Put another way we are told that only the government is capable of determining if the facts justify the means.
The argument that redaction protects sources is most times nonsense.’Humint’ (human intelligence) as its is called, is rare in cases of terrorism. Information, for the most part, is gathered electronically, and thanks to Edward Snowdon, we all how that is done.
So why not a debate based on the facts? I suggest the reason is diabolically simple. It is far easier to govern by fear than by reason.