Lord Goldsmith’s Speech

by Roger Alford

Attorney General Lord Goldsmith’s speech last week made international news for his two paragraph discussion calling for the closure of Guantanamo Bay. In that portion of the speech he argued that closing Guantanamo would be right as a matter of principle and also would “remove what has become a symbol to many – right or wrong- of injustice. The historic tradition of the United States as a beacon of freedom, liberty and of justice deserves the removal of this symbol.” But there is so much more to this speech than simply that one topic. The speech is worth reading in its entirety. I think his concluding thoughts in particular nicely summarize a centrist position on protecting our security and our liberties. Here are a few highlights:

On the threat of terrorism:

But while terrorism is not new September 11th changed the landscape of terrorism forever. These new outrages are, I believe, of a different nature from older forms of terrorism and therefore more difficult to tackle: it is not just the scale – over 3000 people of many different nationalities were killed in the Twin Towers – but the aspirations of the terrorists – they would have killed 10 times as many if they could have; the use of suicide bombers – it is very hard to guard against attacks by people who not only do not care if their lives are lost but positively want it; the use of modern technology – to attack: commercial planes and dirty bombs if they could get them; and to communicate: no more do terrorists need to conspire in a darkened cellar where they might be overheard but through encrypted emails and scrambled telephone messages which are much more difficult to intercept. And they are international in nature: modern day terrorism is carried out through a network of cells and different organisations able to call on help from people in different countries. This diffuse and globalised structure presents enormous challenges to national law enforcement agencies.

On the European Convention on Human Rights:

The bedrock of protection for fundamental rights in Europe is the European Convention of Human Rights. The Convention may be over half a century old and may be criticised as outdated in some respects – for example, in its protection of socio-economic rights – but stripped to its essentials, the Convention remains a statement of all that democracy stands for. This Government passed the Human Rights Act 1998 which incorporates into our national and domestic law the provisions of the European Convention on Human Rights…. I believe that this Act has been one of the great achievements of recent years and indeed of this Labour Government. It enshrines in our law the principles that all human beings should be treated with respect, equality and fairness; that they should all be accorded basic fundamental rights.

On balancing security with civil liberties:

I would suggest that the greatest challenge which free and democratic states face today is how to balance the need to protect individual rights with the imperative of protecting the lives of the rest of the community…. Sometimes the criticism comes from the right, from those who see the Human Rights Act as a charter for criminals and terrorists which impedes the executive’s freedom of manoeuvre at every turn. Sometimes the criticism comes from the left, from those who see in every Government initiative a threat to civil liberties. Such criticism is inevitable.

On torture and deportation:

I should make clear that intervening in this case does not mean rejecting the proposition that the rule against torture is absolute. The basic principle – that a state must not in any circumstances subject those within its control to torture or inhuman or degrading punishment – is surely right. It is not an optional part of the Convention – it is at its core and no derogations are permitted and there is no balancing test. But should the prohibition on torture apply in the same way when assessing the extent of a risk that ill-treatment might take place at the hands of another state? Was it really intended by those who drafted the Convention that considerations of the safety of other citizens could not be taken into account in such circumstances when the issue is whether a foreigner should be admitted here or allowed to remain? It is salutary to note that those who engage in acts of terrorism are explicitly excluded from the protection of the Refugee Convention, drafted at around the same time as the ECHR. It seems a surprising outcome that under the ECHR participation in acts of terrorism has effectively become a trump card.

Concluding thoughts:

In meeting the difficult task of finding the right balance my personal opinion is that three principles are key. First we should not throw away our respect for the law; on the contrary we should ensure that all our actions are justified and supported by the law. If we were to abandon our commitment to the rule of law we would be giving the terrorists a victory. Second, we should strive to maintain our adherence to fundamental values and liberties; some fundamental rights and liberties are absolute and there can be no compromise on them; for others they may have to give way to other competing interests as the international human rights instruments recognise; but – and this is the third point – where we depart from traditional ways of guaranteeing civil liberties we should be clear that our actions are proportionate to the threat and needed to meet it.


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