Quod Erat Demonstrandum

Latin. I could never be doing with it. Granted it was never seen as a core subject at my comprehensive school in Glasgow and somehow I managed to miss a lot of the token Tuesday afternoon classes – for which you would probably get an ASBO these days.

So it was with heavy heart that I returned to the issue of "habeas corpus", which cleverer folk than I can translate as "you have the body". As far as I can make out the idea of habeas corpus is that you have the right to be free unless it can be proved that your detention would be lawful. Sounds like a very good idea, and one deserving of a better and more easily understood name.

I mentioned in last week’s blog that I was reading a paper by Aidan O’Neill QC about the history of human rights in Scots law and politics. One interesting revelation was that a misunderstanding of the place of Scots law in the UK was crucial to a US Supreme Court decision regarding inmates at Guantanamo Bay.

The legal question at issue in Boumediene v Bush was whether detainees in Guantanamo, who had been classified by the US Government as "alien enemy combatants", were able to claim habeas corpus rights given that they were not US citizens and were not detained on US territory. In non-legal speak did the US Government have to give a legal justification for imprisoning hundreds of people or could they just do what the hell they wanted to because they’re big?

In defending their attempt to deny habeas corpus to detainees the US Government looked back to the origins of the US legal system in the parent UK system. They pointed out that, at the time of the founding of the United States, the courts in England had no power to determine habeas corpus in respect of prisoners detained in Scotland and hence that the US system had the built in principle of not granting habeas corpus rights in foreign territories.

In ruling against the Government, the Supreme Court majority suggested that an English court could but would not issue a writ of habeas corpus in respect of an individual detained in Scotland by reason of "prudential concerns" related to "the English Crown’s (sic) delicate and complicated relationships with Scotland" (I’m stealing all these clever bits from O’Neill’s paper).

The minority, in opposing this finding, presented the equally wrong argument that the English court had no power to issue the writ of habeas corpus because "even after the [1707] Union ‘Scotland remained a foreign dominion of the prince who succeeded to the English throne’

In fact the English courts could not present any writ in Scotland because they had no jurisdiction there because Scotland has a completely separate legal system. You’d think whoever was briefing all those judges would have spotted that.

So the law is indeed an ass. Partly for basing each opposing conclusion on its own mistakes and partly for not just sticking with Article 9 of the Universal Declaration of Human Rights, which clearly states "No one shall be subjected to arbitrary arrest, detention or exile." I don’t see any wrangling about foreign territories there.

But even although the Supreme Court ruled in favour of the detainees, they are still being held without trial. Which is why we’re planning some fun activity in Edinburgh for the 11th January – the seventh anniversary of the first detainees arriving in Guantanamo. Watch this space.

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