Dick Tiger vs. Henry Hank: A Golden Era of Middleweight Boxers

Dick Tiger (right) clashing with Henry Hank at the Garden in 1962

The history of boxing, rich as it is with an innumerable array of expressions of the noble art by an assortment of gifted individuals, is also one which from the vantage point of hindsight can be compartmentalized into various eras.

The ‘Bare Knuckle’ era and the transitory period before the advent of the Marquis of Queensberry Rules form distinct epochs as do, say, the eras referred to respectively as pertaining to that of the so-called ‘White Hopes’ and the ‘Television Era’.

The game in America also reflected many aspects of the shifts and changes in the nation’s social evolution so much so that boxing has at certain junctures formed the reference point for trends regarding attitudes to race and ethnicity, social morality, technology, and even business sales and marketing models.

It was probably boxing’s inherent value in terms of the purity of its elemental form of combat and the decisive nature of a potential definitive finish via the route of a knockout which shaped the fight between the American Joe Louis and the German Max Schemeling into a metaphorical morality play of an impending worldwide duel between the forces of democracy on the one hand and totalitarianism on the other.

When Dick Tiger fought Henry Hank on March 31^st 1962, boxing had been firmly in its ‘Television Era’; this the period of regular coverage of bouts on major American television networks.

It was an era approaching its end. CBS and ABC had dropped their broadcasts respectively in 1955 and 1960, while the groundbreaking DuMont Network, which had featured bouts from New York’s St. Nicholas Arena, had gone out of business.

In fact, Tiger would fight the last of the weekly televised fights run by the Madison Square Garden Organisation in association with the Gillette Corporation two years later at the Cleveland Arena against Don Fullmer.

Boxing also was now in something of a phase which American fans acknowledged to be one of a marked internationalization of the sport, and the career of Dick Tiger was emblematic of this.

A Nigerian who had emigrated to Liverpool; the port city in the north west of England, he had in 1958 become the British Empire middleweight champion and the following year would transfer his base to the United States where his avowed goal was to capture the world title.

Successfully seeing through his task would be no mean feat as he happened to arrive on American shores during what must be described as a ‘golden age’ of middleweight boxing. Doubtless, it is not as celebrated as the frequently referred to golden era of heavyweight boxers of the 1970s which consisted of Muhammad Ali, Joe Frazier, George Foreman, Ken Norton, Larry Holmes along with the gate-keeping group of talent such as Jerry Quarry, Earnie Shavers, Ron Lyle and others.

Their names were not as widely known to the American public as they might arguably have been had they fought in the 1920s or 1930s, and their rivalries, when narrowed down to those involving a series as say Tiger and Joey Giardello and later on, Emile Griffith and Nino Benvenuti, did not capture the imagination in the manner that the confrontations between Tony Zale and Rocky Graziano did.

Nonetheless, from a period of roughly between the later part of the 1950s to the middle portion of the 1960s, boxing produced a group of formidable, well-schooled and highly competitive middleweight boxers.

Who were these men? A random list would have to mention Rubin Carter, George Benton, Gene Fullmer, Florentino Fernandez, Holley Mims, Jose ‘Monon’ Gonzalez, and Henry Hank. And it would be seriously remiss not add the likes of Gene ‘Ace’ Armstrong, Billy Pickett and Jesse Smith.

They were formidable because to quote Ron Lipton, whom Joey Giardello once described as knowing “all the styles of the 1960s middleweights pretty well”, they were “cast in a mould which is not of this world today.”

They were well-schooled because they trained at old style boxing gymnasiums and under the actual tutelage of or in the recommended training methods that were proselytized by icons such as Charlie Goldman, Jimmy August, Freddie Brown, and Chickie Ferrara.

They were competitive because they were matched competitively from their starts in the neighborhood arenas to when they fought on the bills put on by Teddy Brenner and Harry Markson at Madison Square Garden, the acknowledged ‘Mecca of Boxing’.

Can anyone doubt the formidability of the bull-like, awkward Fullmer who would cut you to ribbons by fair means and occasionally foul or the skill of Joey Giardello, a slip in and slide out master box-puncher replete with all the tricks of the trade?

For instance, if you got him into a tight-spot, Giardello did not bite you or head-butt you. He would push both of his thumbs into an opponent’s arms and apply pressure to the inner part of the biceps until this discomfit inducing distraction enabled him to move out of trouble and reposition himself in a more advantageous part of the ring.

The brutally constructed physiques respectively of Fernandez and Gonzalez spoke volumes of their work ethic as indeed it did about Rubin ‘Hurricane’ Carter whose level of ring craft was enough to propel him to title contender status less than two years after turning professional soon after his release from prison.

Take George Benton for example. A fighter blessed with a tremendous skill-set and one worthy of bearing the mantle of champion, but who was unfortunate never to fight for the title.

He was a slick, relaxed and perfectly balanced performer who could ‘read’ his opponent and anticipate the delivery of his opponent’s punches. That he was never knocked down and rarely stopped is a testament to an elusiveness borne out of an unerring talent for strategic movement and the efficient navigating of ring space.

Many modern fans who drool, or at least, marvel at the sight of the defensive skills of Floyd Mayweather Jr would appreciate Benton’s stratagem of precision movements of evasion and blocking while in a stationary stance.

He kept his balance while tilted to the right which functioned as both a defensive and an offensive mechanism. A movement of the shoulder and a glove held high protecting his head would be the precursor to an attack by way of hooks to the body.

These were the fighters who were contemporaries of both Dick Tiger and Henry Hank.

Hank himself could best be described as a box-puncher. He was cool and studied in his motions; fighting orthodox-style off a jab, he could whip out fearsome punches whether short rights or left hooks or lunge in, head bobbing, to exchange punches in a brawl. He was, like many of his contemporaries, also proficient at the now lost art of inside fighting.

Twenty seven years old at the time he came up against Dick Tiger, he had been born Joseph Harrison in Greenville, Mississippi but fought out of Detriot City. He had competed in 67 bouts of which he had won 52, lost 14 and drawn thrice. His 36 knockout victories was evidence of his punching ability which he had put to good use two months earlier by stopping Jesse Bowdry, a light heavyweight contender, in New Orleans.

Dick Tiger, the number one contender, was 32 and worried that he would not get a crack at the middleweight championship. He’d endured a false start of sorts to his American campaign by drawing and then losing a disputed decision to Rory Calhoun. He had also got through a distracting saga with the Canadian, Wilf Greaves, who had temporarily relieved him of his British Empire title.

Tiger had been declared the winner in their first bout only to be told that he had lost it in a retabulation of the match officials’ scorecards. The expected immediate rematch was delayed by the prevarications of Greaves who then decided to take a non-title fight in America.

Tiger won his title back and set himself on a course which saw him stop Gene Armstrong and Ellsworth ‘Spider’ Webb. Then he outpointed both Hank Casey and Billy Pickett before stopping Florentino Fernandez in Miami two months earlier.

So it was that both Tiger and Hank were matched by Teddy Brenner to meet on a Saturday night before television cameras on ABC’s ‘Fight of the Week’.

It was a ten round non-title bout before 7, 500 spectators gathered around a squared ring in the Garden where puffs of cigar smoke set roof-bound trails that lingered in the air amid the bright and scorching klieg lights.

It would have been as much business as usual for the fighters as it was for the television audience who were treated to the distinctive staccato tones of Don Dolphy calling the bout and Johnny Addie, the resident ring announcer, introducing boxing cognoscenti of past and present as well as the participants.

Tiger versus Hank was a typical example of the superb level of matchmaking which is an extremely rare occurrence in contemporary boxing where the fear of losing an undefeated record of a prospect contributes to the unevenly matched and tedious-to-view under-the-main-bill bouts. This phenomenon also impacts on many supposedly championship level bouts which are staged under the auspices of the many ‘world’ governing bodies and their multiplicity of ‘title’ belts.  

The audience which cheered Addie’s announcement of Dick Tiger’s name with a roar of approval had accepted this African-born, England-sojourning foreigner and taken him to their hearts because like the home-nurtured Hank, he was bound to offer and display nothing less than an unadulterated quotient of commitment, maximum fitness, high levels of skill, a high degree of resilience and an exemplary demonstration of sportsmanship.

At the din of the bell signalling the commencement of the first round, Hank was the quicker of the two in leaving his corner. He bounded towards his opponent, immediately assailing Tiger with three jabs and then pressed in closer to dig in a right upper cut to the side of the body in combination with a follow up left hook.

A short exchange followed with Hank aggressively clinching on to Tiger and forcefully pushing him into the ropes.

Would this be the Tiger who some were wont to consider a slow starter? The methodical ‘plodder’ who would allow Griffith to ‘steal’ his middleweight title in 1966?  A hesitant combatant who would burden himself with the unnecessary and pernickety analysis of his foe as he would be accused in his drawn world title rematch with Gene Fullmer in Las Vegas? These sorts of accusations had been made in his first fight against Wilf Greaves and in his bouts with Rory Calhoun.

Not in this fight.

If Hank thought that he could unsettle Tiger by attempting to physically bully him, he was sorely mistaken. Two stiff hooks arced from the left side of his body and launched from a crouched, defensive posture with gloves held high, caught Hank squarely in the face.

The rhythm of the attack and the distance between them suggested a pause as Tiger repositioned the direction of his stance and Hank adjusted his gait, but Tiger suddenly exploded, sweeping out a right and then pressing on with two further left hooks which caused Hank to retreat on to the ropes off of which he bounced back into the path of Tiger who offloaded yet another hook, this one wild and venomous in intent, but which luckily for Hank, scraped past his skull.

Both men stood off for a short while before resuming hostilities. Hank, at five feet ten, was the taller man by two inches. He tried to establish a rhythm by leading with a ramrod jab before coming in close with his feet firmly planted to land solidly to the body. Tiger, on the other hand, occasionally felt Hank out with what could be termed a measuring left before unleashing his damaging hook.

Defensively, both men moved their heads well, Tiger had his left glove high as Hank stepped in, and would counter or even lead with a stinging left hook. But he would crouch down quickly, shoulder angled in self-protection, in order to absorb or evade Hank’s counters.

The ringside microphones TV captured the sound of the grunts which accompanied the efforts of each man’s power shots, with Hank being the more expressive of the two in this department. There was much give and take and a fair share of thrust and parry, but it was Hank who appeared to be jolted more often; his processed hair visibly bouncing from its roots as Tiger bulled forward and made him, consistently fight while on the back foot.

In the second Tiger scored more cleanly than Hank. He continued the pattern developed in the first by outworking his opponent and beating him to the punch with his preferred choice of weapon: the precision guided left hook.

Who was proving the more physically stronger and tenacious of the two? This was without question Tiger. Hank was game for sure, but as the round was about to end, both stood toe-to-toe and traded blows; an episode which lead to Hank retreating into a corner before scurrying out of this tight spot towards the centre of the ring while the advancing Tiger reigned in blow after blow until the bell sounded to end the round.

Round three. Hank came out with a probing left, but stung by a stern left, he decided to make adjustments to his approach. He had up to this point used his jab as a precursor to stepping in and planting his feet to load up and fire in power shots accompanied by huge and heavy grunts.

Now, he began boxing looser.  Tiger, on his part, defended well from a coiled stance and continued to counter with great force and effectiveness; his well-angled counters thudded into Hank with great violence.

When Tiger advanced, Hank managed to reply with scoring counters, but Tiger’s tighter defence, which involved him enveloping his more compact frame at close range with his arms and elbows along with the swift movement and adjustment of his head, meant he could nullify most of his opponent’s retorts.

It is worth remembering that Dick Tiger was in fact a defensively sound fighter. This was achieved through a variety of methods: shoulder movement, head movement, and an Archie Moore-style cross armed stance from which to defend or uncoil from with an offensive consisting of single or double hooks.

The pace slowed down in the middle rounds, but both men’s work rates maintained a level of beguiling intensity. There was, for instance little or no clinching. Tiger began ratcheting up the points; he threw more punches, while Hank threw less. And when Hank did land, many of his punches were blocked or smothered by Tiger.

With the heart and persistence of the brave and committed pugilist that he was, Hank kept jabbing, hoping to open Tiger’s defences. But Tiger continued to better him. When there was a lull and Hank contrived to pick up the pace, Tiger would again rise to meet the challenge and inflict retribution.

Even in round eight, when he might have sensed that it was all a lost cause, Hank did not visibly lose heart. He was prepared to absorb punishing blows in order to plant his feet and hit Tiger with clubbing overhead rights.

And what to say of sportsmanship? The bout did not feature an excessive level of clinching or any bouts of ill-temperedness. In the ninth round, Tiger in a fit of over eagerness, accidentally hit Hank on the break.

A bark from Mercante in admonition was met with an elaborately orchestrated but genuine mea culpa: a quickly executed bow and a salute in the direction of Hank which the crowd acknowledged with a cheer of approval and a short round of applause.

Hank’s jab in the final round continued to probe as he attempted to pick spots when Tiger was within range. But mid-way during the round, Tiger scored a walloping hook and again applied unrelenting pressure on Hank until finally the bell rang to bring an end to the proceedings.

When Johnny Addie read the scores, each was an overwhelming record of Tiger’s dominance. Bill Recht scored it eight rounds to one with one round even, the other judge, Leo Birnbaum, had it nine rounds and an even round, while referee Mercante adjudged every single one of the ten rounds to be in Tiger’s favour.

Hank graciously went over to congratulate his conqueror. His career would last for a further decade during which he would defeat a middleweight Jimmy Ellis, draw with Johnny Persol and lose to Harold Johnson and Bob Foster.

For Dick Tiger, it proved to be the final eliminator before challenging and defeating Gene Fullmer for the world middleweight championship. His career would run for eight more years during which he would lose and regain the middleweight title and also win the world light heavyweight title.

Ahead of him was the adulation of the Nigerian nation which was crowned by a winning title defense against Gene Fullmer in the city of Ibadan; black Africa’s first staged world title bout fully eleven years before 1974’s ‘Rumble in the Jungle.’

There would of course be the tragedy of Biafra and a diminution of his wealth and finally the loss of his life through cancer. 

But he left a rich legacy through fights such as the one which pitted him against Henry Hank, a fight for fans to savor because of its entertaining display of the essence of the noble art. It is a fight for posterity; one which each generation of practitioners of the boxing trade can watch to seek both instruction and inspiration as they attempt master the fundamentals of the sport of boxing.

(C) Adeyinka Makinde (2012)

Adeyinka Makinde is the author of DICK TIGER: The Life and Times of a Boxing Immortal. His latest book is JERSEY BOY: The Life and Mob Slaying of Frankie DePaula.

Dick Tiger: Portrait of a Fighter

PHOTO: Neil Leifer (November 1967)

Deep in his thoughts Dick Tiger, whose real name was Richard Ihetu, sits in his dressing room in the Convention Center , Las Vegas and contemplates his impending bout with Roger Rouse against whom he will be defending his world light heavyweight title.

There was much more to contemplate. With a civil war raging in Nigeria in which he will involve himself as a spokesman on behalf of the secessionist republic of Biafra, he would in a matter of weeks be commissioned into the Physical Corps regiment of the rebel army as a Lieutenant.  

As recounted in the biography DICK TIGER: The Life and Times of a Boxing Immortal, three hours before the bout, word had reached him from the Biafran Mission in New York City that his wife Abigail had given birth to their seventh child seven days previously. It was a seven pound baby girl.

“In this town Dick,” his manager Wilfred ‘Jersey’ Jones excitedly informed him, “three sevens is a jackpot in those one-armed bandits!”

Defying the prediction of an early version IBM computer that he would lose, Tiger stopped Rouse in the eleventh of a scheduled fifteen round bout.

Dick Tiger died four years later on December 14^th, a victim of liver cancer.

(C) Adeyinka Makinde (2012)

Adeyinka Makinde is the author of DICK TIGER: The Life and Times of a Boxing Immortal

FILM REVIEW: Skyfall (2012)

Bond is back. For the twenty-third time in fifty years, Eon productions, which started as a collaboration between the American Albert 'Cubby' Brocolli and Harry Saltzman, a Canadian, and which is now run by the heirs of Brocolli, have dreamed up another epic concoction of the enduring espionage-thriller series starring British Secret Intelligence Service agent James Bond, the mythic construction of English author Ian Fleming.

Fleming, an operative for British Intelligence during the Second World War, dreamed up a series of books which he would reveal were “written for warm-blooded heterosexuals.”

With a globe-travelling hero constantly enmeshed in life-or-death intrigue amid a procession of alluring and sensual female companions, and who pitted wits against an assortment of ferocious villains working for ideologically hostile foreign governments, the books portrayed a hero decidedly more worldy in scope than the famous heroes created by Sir Arthur Conan Doyle, John Buchan and Herman Cyril McNeile.

Bond certainly projected a more glamour-tinged edge and a level of escapism which represented a clear departure from past characterisations of the British super sleuth.

The context of the origins of the Bond phenomenon are worth noting. The end of the Second World War marked the beginning of the end of the British Empire, a period in which the contracting imperial body politic was mirrored by a waning influence on a world stage now dominated by the cold warring United States and Soviet Union.

Yet Bond, the master problem-solver and the public school-populated but tenaciously game British secret service, kept the crumbling empire relevant. 

The backdrop of the humiliation of the Suez Crisis notwithstanding, Bond foils the ambitions of Doctor No, the Soviet asset who is sabotaging American missile tests at Cape Canaveral, and in From Russia, With Love, the debacle of the defected Burgess and Maclean is glossed over by an understanding on the Soviet side that its most feared counter intelligence agency, SMERSH, considers Bond and the British secret service their most formidable foes in the conduct of the brutal business of international espionage.

Thus it was in the context of the austerity-laden fifties and the Cold War that Fleming’s brain-child became colossal best-sellers; paving the way for the movies that would find a cinematic niche in the 1960s.

The Bond films, inaugurated with Scottish actor, Sean Connery in the lead role were nothing short of a cultural phenomenon. The movies were replete with beautiful female leads, exotic location backdrops, technology-savvy gadgets, thrilling car chases, and popular, velvety title songs which captured the public imagination.

It led to a host of imitators, none of which survived. The Bond franchise went from strength-to-strength finding new themes after the ending of the Cold War while keeping many of its distinctive elements.

Some of these central elements are for some tired features and expressions of an anachronistic formula.

“Bond is an imperialist and a misogynist who kills people and laughs about it, and drinks Martinis and cracks jokes,” said Matt Damon, star of the Bourne Identity series of movie thrillers.

But Skyfall, featuring Daniel Craig in his third outing as Bond, shows there is still much life left in the series. Directed by Sam Mendes, the movie follows the established pattern of an attention-grabbing opener, a heavily orchestrated cabaret-style theme tune sung to stylized opening titles, intense fist fights, car chases and an arch-criminal with whom Bond engages in a noisy duel to the death.

The grotesqueness of Fleming’s villainous characters, invariably foreigners, almost to a man deformed or depraved, and certainly vainglorious and amoral in the extreme, was retained in the films and remains in the narrative of this movie.

The villain of the piece is one Raoul Silva, a disgruntled former British agent played by Spanish actor Javier Bardem who is bent on humiliating and destroying ‘M’, the head of MI6, the British foreign intelligence service. Silva is a resourceful enemy who utilises cyber-terrorism as a means of penetrating the inner sanctum of MI6.

The organisation is so thoroughly compromised that he literally sends it underground to the subterranean labyrinth which functioned as Winston Churchill’s war time bunker.

As a leading man, Craig is decidedly cut from a cloth different to those who have previously inhabited the role of Bond. His pug-ugly mug, crew cut hairstyle and sinewy build remove any pretence of the traditional suave appearance of the character and underline the fact that Bond is as much of a thug as the thugs he pursues.

This effect does not necessarily depart from the original depiction by Fleming whose novels bore more than a hint of Bond’s inherent coldness, his ruthlessness and sadistic tendencies.

In From Russia With Love, Bond can sort out the gentleman assassin from the rest by studying the choice of meat used to complement his brand of wine. One suspects that Craig’s character operates on different instincts.

Bond movies are about out and out action as well as about death, and here the instruments of conflict are no less innovative than they were in succeeding films in the series.

A ‘smart gun’ with individualised palm-prints provides the latest incarnation of Bond’s perennial Walther PPK, while others are armed at various points with Glock 18C pistols which are loaded with depleted uranium and an assortment of high-powered assault rifles and sub-machine guns. A colt rifle and a dagger, however, provide for more down-to-earth weaponry.

In Skyfall, the villain truly brings the fight back to the home front. While the movie has segments staged in far off places such as Istanbul, Shanghai and Macau, much of the action is set in London and ends at Bond’s family estate and childhood home in Scotland.

Is Bond an anachronism as some are wont to assert? An answer need not dwell too much on the intricate points of cultural critique and notions of political correctitude. So long as movies can thrive on action, adventure and pure escapism James Bond movies will belong to the times in which they are made.

(c) Adeyinka Makinde (2012)

Adeyinka Makinde is the author of JERSEY BOY: The Life and Mob Slaying of Frankie DePaula

Military Commissions and Natural Justice: Lessons from History for the Trial of those Accused of Perpetrating the September 11th Atrocity

The recently commenced pre-trial hearings regarding the alleged sponsors of the September 11th attacks in New York City brings firmly into the spotlight, the use of military commissions in the trial of those who are designated as enemies of the American state.

Whatever the appellation given to the defendants, be it ‘unlawful combatants’ or ‘terrorists’ or ‘saboteurs’ or ‘assassins’, the unlettered view of the man-in-the-street perhaps tends towards the view that military justice is much shorter than that dispensed in the civilian sector and that it comes with a brutally managed precision which does away with the strict protections afforded to the individual by the ‘conventional’ criminal law courts.

But if this impression of the use of military tribunals appears to be somewhat lopsided, it would not have escaped the attention of the unerring observer that despite a series of confrontations between the American executive and its judicial counterpart in which the Supreme Court has consistently ruled against the use of military courts in preference to civilians ones in the conduct of proceedings against alleged operatives and adherents of Al-Quaeda, President Barack Obama has insisted on trying Khaled Sheik Mohammad and four others before a specially constituted panel of military officers and military lawyers at the naval base in Guantanamo Bay.

While it is the case that the concept of a military court does not mean that the principles of natural justice and due process are comprehensively abandoned, the suspicion is that the authorities are insistent on opting for the military route because it will guarantee the finding of guilt as well as the execution of Mohammed.

And to do this, the ad hoc nature of specific tribunals such as this one alongside an insistence on a ‘modification’ of the conventional process of dispensing justice for reasons of ‘national security’, entails that a defendant will not be as assured of a reliance on the strict rules of procedural even-handedness.

The Supreme Court after all rejected in 2006 a Bush administration-proposed military commission in the context of the Guantanamo security regime on the grounds that it imposed an intolerable deficit on the sum rights of the defendant.

By resuscitating the military option, the American government is putting itself under tremendous pressure to avoid the inevitable label of ‘show trial.’

While Colonel James Pohl, the army officer presiding over the hearing of Mohammed will doubtless officiate in a manner devoid of the hysteric fury of a Roland Freisler and refrain from employing crude ideological rhetoric reminiscent of Andrey Vyshinsky, the mechanism within which he will be working is considered by many human rights groups and even former military officers as being too secretive and weighted decisively in favour of the prosecution.

It is useful at this point to distinguish between those trials which proceed under the court-martial system and those which may be required to be conducted under the auspices of a military commission.

Such distinction involves separating those who are adjudged as ‘lawful combatants’ under the Geneva Convention rules governing the conduct of war from those who are ‘unlawful combatants’.

The former in essence consist of members of the armed forces of the nations at war and enjoy immunity for actions which comply with the law of war. They have prisoner-of-war status and if charged with the violation of laws must be tried under the court-martial system of the nation which has captured them.

The latter, on the other hand consist of civilians who actively partake in hostilities. By doing so, such civilians violate the rules of law and are considered to be ‘unlawful combatants’ and under Common Article 3 of the convention are entitled, it may be argued, to be tried through a legal mechanism which may be less protective of the rights accorded to soldiers.  

There is, for instance, no right to public trial. In other words, secrecy is condoned on the grounds of protecting state secrets, and there is no right to trial by jury; the judges of procedure and fact being military officers.

The Supremacy Clause of the United States Constitution expressly incorporates into American law the provisions contained in the treaties to which it is a signatory nation. These provisions may be formally enshrined in statute or, in some instances, be directly enforced by the judiciary.

Two months after the September 11 outrage, President George Bush issued a military order designed to facilitate the newly inaugurated ‘War on Terror.’ It directed the US secretary of state for defence to “detain any non-citizens who were members of terrorist organisations such as Al Quaeda who engaged in, aided or conspired to commit international terrorist acts against the United States or its citizens.”

The order further empowered the secretary of defence to establish military tribunals, alternatively known as military commissions, to conduct trials of non-American citizens accused of terrorist offences either on American or on foreign soil.

Bush’s order specified that such defendants would receive "many but not all of the protections provided by a civilian criminal court." Among the standard rights afforded are those of ‘innocent until proven guilty’, a burden of proof on the prosecution with the standard pegged at beyond all reasonable doubt, adherence to the double jeopardy principle and the right to plea bargain.

However, rather critically, the exclusionary rule which operates to nullify illegally seized evidence was not included and neither was a procedure allowing appeals against conviction to be made via a channel to civilian judges.

President Obama’s revival deemed in some quarters as a betrayal of an election promise to close down Guantanamo Bay Detention camp and implicitly, the procedures associated with it, is criticised despite his slight modifications which include excluding information obtained by "particularly brutal methods" and limiting the use of hearsay evidence

Military tribunals, as with other legal constituted panels of justice, are expected to operate according to the principles of natural justice at the heart of which lie two key tenets: The nemo judex in causa sua rule, translated into English as the rule against bias and the audi alteram partem rule, the right to a fair hearing.

Of ‘fairness’, certain commonsensical prerequisites have to be met, notably that parties are given prior notice of the hearing, that each is granted the opportunity to state their case, that the defendant’s right to legal representation be respected, that the hearing be conducted in an impartial manner and that a decision be rendered along with the reasons for it.

But all notions of fairness become compromised when the circumstances of detaining Al Quaeda suspects and the procedural rules governing the trial process of defendants such as Abd al Rahim al-Nashiri, the alleged mastermind of the bombing of the USS Cole,  as well as Sheik Mohammed and his cohorts are examined.

The background to the apprehension and detention of those allegedly associated with the Cole and September 11 attacks reveal a narrative consisting of extraordinary renditions, 'black site' prisons, waterboarding, interception of lawyer-client communications, the elaboration of procedural rules after the preferment of charges with the effect of retroactive application of certain rules, and a failure to provide for discovery.

It is no surprise therefore that several prosecutors have determined their positions to be untenable; opting to resign owing to ethical misgivings about the operation of the military commissions.

It is also a great concern that the aforementioned techniques of detention under the Guantanamo regime have been persuasively argued by many eminent figures to constitute a species of torture under the provisions of international agreements to which the United States is a signatory state.

And notwithstanding the still uncertain position of the non-state affiliated terrorist cells which are composed of the typical Al Quaeda fighter when captured and held as prisoners, the implemented military commission policies appear to offer such detainees rights which fall short of the minimum afforded by Common Article 3 of the Geneva Conventions which includes protection from the “passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.”

In other words, even if the United States government prefers to designate Al Quaeda detainees as ‘illegal combatants’ rather than as ‘lawful combatants’ in a subsisting ‘War on Terror’, it is in the considered opinion of many experts in international law to be failing to adhere at a minimum level of legally acceptable standards.

The study of the torture techniques applied at the Guantanamo Bay Detention camp is well documented. They include sexual assault and humiliation, sleep deprivation, solitary confinement and isolation, mock executions, temperature manipulations and watching others being tortured.

Al- Nashiri was held captive in secret CIA ‘black sites’ in ‘Afghanistan, Thailand and Poland and has been subjected to both waterboarding and mock executions while Khaled Shiek Mohammed was apparently waterboarded 183 times in one month.

These transgressions would render as inadmissible any evidence tendered in a ‘conventional’ court by the prosecution as being the voluntary signed confession of an accused.

The use of military commissions in United States history, spanning the period of the American Revolutionary War to the present War on Terror has not been without controversy and a certain amount of misgiving.

General Washington’s ‘board of inquiry’ which tried and hanged an accomplice of the Benedict Arnold, was the precursor to the formal military commissions which were established to try guerrillas and other irregulars during the Mexican-American War of 1846 to 1848.

Military commissions were used to try eight alleged accomplices of John Wilkes Booth, President Lincoln’s assassin, as well as two squads of English-speaking German saboteurs put aground by submarines at locations in New York and Florida during the Second World War.

Four of the eight accomplices to Lincoln’s murder were hanged and the others received prison sentences while of the eight German accused, six were convicted and put to death.

The constant factor in the vast majority of these trials, held as they were in the context of national emergency, is the sub-text that few if any acquittals of presumed enemies of the state were ever going to be the logical denouement of the process.

Indeed, the Nuremberg Trials, often viewed through rose-tinted lenses as the high-water mark of the successful application of international principles of law via an established series of military commissions, has always had its detractors.

Senator Robert Taft, at the cost of his presidential aspirations, was vehement in his condemnation of what he felt was the ‘victor’s justice’ of the allied side. Certainly US Chief Justice Harlan Stone tended to agree with Taft when writing in a private letter that the Nuremberg Trials were a “high-grade lynching party.”

That Andrey Vyshinsky, the chief prosecutor at Stalin’s infamous ‘show trials’ and the representative of the gulag-operating totalitarian Soviet state which had recently massacred thousands of the Polish intelligentsia at Katyn Forest, sat in judgement at the proceedings spoke volumes about the relativism of achieving justice.

The atmosphere of siergerjustiz, German for ‘victor’s justice’ certainly permeated the circumstances surrounding the trial of the alleged perpetrators of the Malmedy Massacre.

The background to this notorious war crime was the ‘Battle of the Bulge’, Hitler’s last desperate gamble to turn the tide of the war through an offensive in the Ardennes. With German supply lines stretched to the limit and very little in the manner of material and manpower resources to keep large bodies of allied prisoners of war, 80 American troops were murdered by members of an SS Panzer Unit.

At the subsequent trial held under the auspices of the Dachau Military Commission, the commander of the unit, SS Lieutenant Colonel Joachim Pieper and 42 other soldiers were convicted and sentenced to death with 30 others received varying terms of imprisonment.

The trial gained a notoriety of its own when it was reviewed and arguably presents a salutary case study of what happens when the rules of natural justice are dispensed with. It may arguably have parallels with that of the ongoing trials at Guantanamo Bay.

The defendants had the designation of prisoner-of-war removed from them so that they were not protected by the Geneva Convention of 1929 which afforded prisoners the right to be inspected by Red Cross personnel who could monitor their levels of nutrition and overall physical condition.

The regime of torture appears to have been implemented in the absence of these safeguards. There was evidence of beatings, kickings, torture and other physical brutality presided over by the US Army’s chief interrogator, William Perl whose tactics for extracting confessions included mock trials, extended periods of solitary confinement, bread and water diets, failure to supply drinking water and burning matches under the fingernails of detainees.

A dentist was brought in to fix broken teeth.

In time, the efforts of Senator Joseph McCarthy would succeed in reopening the case at Senate hearings looking into the allegations of torture, and although the Senate committee upheld the sentences, General Lucius Clay, the US military governor of occupied Germany, referred the case to the Administration of Justice Review Board to study irregularities which arose in legal proceedings.

The death sentences were commuted to life imprisonment and the convicted eventually released.

Although the circumstances of an intensifying Cold War between the former war time allies of Western powers and the Soviet Union may have contributed in some measure to the commutation of sentences, many were of the view that the conduct of the Malmedy Trial could not stand the test if measured according to standard principles of trial law.

The Obama administration’s about turn on re-instituting a military commission system of trial for the aforementioned Guantanamo detainees is a calculated risk given the fact that the Supreme Court had frustrated the Bush administration’s plans on three occasions, ruling that the principle of habeas corpus cannot be suspended in regard to the prisoners, that some protections of the Geneva Convention must extend to prisoners and that only congress can establish such tribunals.

But the history of the highest court’s precedents on the use of military commissions on civilians is contradictory. For instance, it ruled in 1866, that a military commission did not have the jurisdiction to try an Indiana-based lawyer who was accused of propagandizing the Confederate cause.

The ruling referred to the need to try citizens in civilian courts when they are “open and accessible.” On the other hand, President Roosevelt’s commission, set up in regard to the German attempted saboteurs, was upheld by the court in 1942. 

The problem of the implementation of military tribunals in the contemporary circumstances of the ‘War on Terror’ encompasses not only the interpretation of American constitutional law and international law, but also the strategy underpinning the prevailing policy of the state.

There is something to the argument proffered by the likes of Keith Allred, a retired naval officer who served as a presiding judge over the first US military commission case since the Nuremberg trials, who asserts that trying Al Qaeda suspects in civilian courts undermines the purpose of the Laws of War and the Geneva Convention since “Trying these men in federal court improperly rewards their abuse of civilian status to engage in hostilities by giving them greater protection than we would give to a prisoner who complied with the laws of war.” 

At the same time, it must also be noted that the trial of certain non-combatant figures in a civilian criminal court may not necessarily obviate the chances of the civilian sphere being utilised as an instrument of state vengeance.

Emotions of communal outrage, of wounded national pride and a pervading sense of the need to revenge a perceived wrong may lurk in the mindset of the general populace as the triumphant reaction of large segments of the American people to the assassination of Osama Bin Laden showed.

The post-war trial in Britain of William Joyce, the notorious Nazi radio propagandist Lord Haw Haw, demonstrated the convergence of popular public sentiment and state policy in contriving the judicial murder of an unpopular defendant; this the outcome to be, regardless of any extenuating circumstances or facts absolving the defendant.

Joyce was put on trial for his life for treason because he had given “aid and comfort to the King’s enemies”. He ought to have avoided the hangman’s noose on the legal technicality that he was not a British subject at the time of the relevant broadcasts.

Although he became a naturalised German citizen in 1940, the prosecution claimed that he was still a British citizen for nine months of his broadcasts before he acquired German citizenship. This is disputed because Joyce, who was born in America to Irish parents, fraudulently obtained a British passport sometime during the 1930s.

This argument was overborne by the prosecution's counter-argument that he was effectively still under the protection of the crown by virtue of his physical ownership of a British passport.

Given what is known about the regime of torture in the Guantanamo security regime as well as at the ‘black site’ locations run by the CIA, the use of military commissions in preference to the civilian criminal courts which objectively would be forced to terminate a trial process if held within their jurisdiction, bear the unmistakable hallmark of ‘drumhead’-style justice.

It is not difficult to read between the lines. The likes of al-Nashiri and Sheik Mohammed, who would pose a persistent threat to American national security if released from the civilian system of courts, would have to be kept under permanent detention or surveillance for the duration of a peculiar sort of war which is of indeterminate length; perhaps decades according to the most optimistic predictions.

Those insisting on the correctness of their trial by military tribunals have in mind the ultimate preconceived objective which most military commissions have tended always to have: to secure a guilty verdict and in this case to have both men and others executed.

The goal for them therefore is to put a gloss on things; to give any trial the veneer of due process. It is a view not unlike the one eventually favoured by Winston Churchill who initially was disposed to having the surviving key Nazi figures taken out and shot, but who was persuaded by Franklin Roosevelt that it would be better to put them on trial; a genuine form of trial rather than the propaganda value show trial favoured by Josef Stalin.

This is the crux of the matter: America, a nation predicated on adherence to the rule of law and as one which boasts about its institutions of governance which it seeks to export, will not be in a position to claim that it leads by example where it is seen to subvert the very principles it holds to be at the heart of its foundation.

(c) Adeyinka Makinde (2012)

Adeyinka Makinde lectures in Public Law at a London University.

Papa Jack

This photograph reminds me of a priceless anecdote that I’ve heard told by Professor Randy Roberts, author of the magnificent biography PAPA JACK: Jack Johnson and the Era of the White Hopes (1983).

Johnson, the first black heavyweight champion of the world, was driving down Jim Crow South in his usual speed limit-defying way. A white traffic cop stops him and tells him that he’s way over the limit and fines him $50 (or so). Johnson then takes out a roll of dollar notes and hands the cop a crisp & pristine looking $100 bill. Stupefied, the cop calls out to Johnson:

“Hey! I can't give you no change.”

And Johnson, without missing a beat responds:

 “Don’t worry Missa Offisah, keep tha change, I’ll be passing tha same way I came through!” 

On Liberty and Vigilance: The Price of Freedom in the era of the ‘War on Terror’

Canada, October 13^th 1970. The capital city of Ottawa has awoken to find troops and armed police officers deployed around buildings which house government officials. A similar picture of martial power is on display in the major cities of the French-speaking state of Quebec where as in Ottawa, troops are milling around the streets and thoroughfares. A military coup d’etat is not taking place but there is crisis.

A seven year-long campaign of violence perpetrated by separatists from Quebec, Le Front de Liberation du Quebec; the F.L.Q., has come to a head. On the morning of the fifth, gunmen had infiltrated the home of the British Trade Commissioner, James Cross, seized him and bundled him into a car. Five days later, Pierre Laporte, the Vice Premier of Quebec and the Minister of Labour, was similarly kidnapped from his home in Saint-Lambert, Quebec.

As he ambles up the steps leading into the entrance of the gothic architecture-styled building that is the national Parliament, Pierre Trudeau, the Prime Minister of the federation encounters a group of journalists. Among their ranks, is Tim Ralfe, a correspondent of the Canadian Broadcasting Corporation with whom he proceeds to engage in an impromptu conversational sparring contest.

They explore the extent to which a society predicated on liberty is willing to go towards preserving its existence in the face of threats from a violent and radical form of opposition, and of reconciling a heavy and intrusive military presence with the ability of the ordinary citizen to conduct his or her day-to-day affairs with the relative ease as is the standard expectation in a supposedly free and democratic society.

The verbal thrust and parry develops and the issue quickly boils down to the following: To what extent would the government be willing to go in order to achieve a victory over the terrorist group.

Ralfe, pointedly asks Trudeau, “At any cost? How far would you go with that? How far would you extend that?” Trudeau’s response is as casual as it is startling:

“Well, just watch me.”

Three days later, after a request by Robert Bourassa, the premier of Quebec, Trudeau invoked the War Measures Act, the first time in Canadian history that it had been activated in peacetime. Passed in 1914, the Act gives emergency powers to the federal government when it perceives that there is a threat of “war, invasion or insurrection.”

The ramifications were profound. Trudeau’s action entailed the suspension of the Canadian Bill of Rights.  In other words, basic civil rights and liberties were frozen, thus allowing the police to conduct searches, seizures and arrests without warrants, as well as authorising the prolonged detention of persons without charges while leaving them without the right to consult a lawyer.

In the starkest of terms, it meant that Trudeau, the leader of one of the world’s prominent democracies, had the power to arrest anyone and detain them indefinitely without charging them with a crime.

Parts of Canada were effectively under military law. And it is worth noting that as the extra-judicial arrests of between 450 to 500 people was commencing; most of who were intellectuals, artists, trade unionists, and ordinary people who sympathised with the cause of Quebec nationalism, most of English-speaking Canada supported Trudeau.

The events which came to be known as the ‘October Crisis’ provide one of many fascinating case studies of a perennial problem faced by democracies. It is that which relates to striking a delicate balance between the competing requirements of national security with that of personal liberty.

It is an exercise that is often fraught with a multitude of dangers no matter how well-intentioned the motives of the relevant chiefs of state when engaged in the task of protecting a society from a range of threats.

Whether it is to prevent the violent overthrow of the state, or to resist bloody attempts to weaken the resolve of the state in order for it to grant concessions of a political nature, the danger of eroding and even permanently extinguishing long accepted and cherished freedoms hovers in the air like a Damoclean sword when nations take measures aimed at their purported self-protection.

And when done with the consent of legislators and the apparent acquiescence of large segments of a population, the danger of a democracy sleepwalking into the trappings of a police state becomes all too apparent.

High notions of morality, along with the strict maintenance of constitutional propriety, must compete with the brutal pragmatism considered to be necessary in combating threats to national security.

The tension between retaining an adherence to the values of liberty, privacy, respect for human dignity and human life come sharply in to focus when certain religions or political persuasions and stances become criminalised, as indeed can certain categories of ethnic groups.

It is strongly arguable that the values inherent in the idealised concept of a functioning democratic society become ever more severely compromised in a nation in which torture and targeted assassinations become legitimised methods of protecting the state. This is not diminished even when such methods are applied hundreds or thousands of miles away from its national borders or that they are applied in a localised or specific manner within national boundaries.

How long, it must be asked, before eavesdropping measures utilized against suspected enemies of the state or name-gathering techniques aimed at unmasking potential terrorists are allowed to impinge on the wider public? Or that the targeting for killing of nationals abroad is not re-directed to those within its borders?

These are crucial questions to ask since history has shown that extraordinary powers parcelled out to particular agencies of the executive have not necessarily been withdrawn after the relevant crisis ceased. These powers may then be used in different contexts to which they were originally intended.

For instance during World War Two, US President Franklin Roosevelt issued a secret order to Federal Bureau of Investigation (F.B.I.) director, J. Edgar Hoover expanding the powers his organisation had in regard to the surveillance of potential fifth columnists via eavesdropping and burglary.

Wily political operator that he was, Roosevelt also was not averse to using the services of the F.B.I. to get information on his political foes. Hoover, who retained the powers he had been given, continued utilising these techniques after the war had ended and in defiance of a later Supreme Court decision which outlawed wiretapping. His victims included Roosevelt’s wife, suspected communist sympathisers, civil rights leaders and members of the political class including succeeding presidents who were effectively blackmailed into retaining him in his position.

By virtue of its role within the aggregate of institutions of power which constitute the organs of state, both John Locke and Comte de Montesquieu believed the executive branch to be most susceptible to authoritarian tendencies.

Much of the scrutiny of the abuse of power must necessarily focus on the executive which controls the day-to-day administrative apparatus required for enforcing the laws and policies linked to the relevant ‘crisis’. The use of the police, armed militias, the military, as well as the security and intelligence services will always be vital in carrying them out.

The results have sometimes left a stain on democratic societies.

Monumental episodes of internment without trial are etched into the political-legal history of the United States, the avowed ‘land of the free’, as is the case with the United Kingdom, the putative ‘mother of democracies’. And just as the British employed a ‘shoot-to-kill’ policy during ‘the Troubles’ in Northern Ireland, so today there exists a policy of officially sanctioned ‘targeted assassinations’ of Islamic fundamentalist suspects in the Middle East and Asia by the American government.

There are many who will argue that the responses in the aftermath of the events of September 11^th 2001, which inaugurated the ‘War on Terror’, have inextricably had the effect of undermining and rolling back the sum rights and freedoms of the citizenry of the Western democracies.

In the United States, the creation of the Homeland Security framework has seen the passage of the Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act (2001), better known by the backronym, ‘USA Patriot Act’ and the National Defense Authorization Act (2012), while in the United Kingdom and Canada anti-terrorist legislation, as with the case of the Americans, have effectively chipped away at fundamental precepts of the rule of law.

In the United States, this has included aspects of due process such as granting immunity from judicial review, searches without warrants, indefinite detentions, the use of secret evidence, the practice of ‘extraordinary rendition’ and the assassination of American citizens.

It has also affected other citizens’ rights such as the ability of the government to conduct continuous surveillance of individuals without the permission and monitoring of the courts.

Immunities are also conferred on those who transgress while executing the orders of the state with the result that C.I.A. officials involved in torture or war crimes are exempted from prosecution.  

A disturbing continuum of an expansion of the security state from the administration of President George W. Bush to that presided over by Barack Obama is clear. For instance, Obama ordered the assassinations of two American citizens in 2011 on the grounds of ‘imminent threat’, a form of anticipatory self-defence under international law and based also, perhaps, on the notion of an inherent presidential power. It is a right which Bush had claimed to possess.

Apart from claiming the right to sanction what are arguably extra-judicial killings, both presidents have also affronted the rule of law by reserving the power to determine who would be tried either by a military tribunal or federal court.

This all stems from the American predicament on how to process those Al Quaeda suspects it had rounded up after its invasion of Afghanistan and their interment at Guantanamo. Since it had declared a ‘War on Terror’, it stood to reason that those self-proclaimed Jihadists would be treated as soldier-prisoners of war with entitlements to the protections available under the Geneva Convention.  

The American government disagreed, claiming that they were not ‘lawful combatants’ and could not be treated as prisoners of war. The response to this was that if these Islamist irregulars were not soldiers and were common criminals, they should have been handed over to the federal courts. This, of course, the Americans were not prepared to do; at least not at the onset. It has made up the rules as time has passed.

What is clear however, is whether judged by the standards of international law or municipal law, the detainees have been held in circumstances which have been universally condemned as inhumane, and subjected to a detention regime which has included what is legally defined as torture.

The United Kingdom, with a recent history of dealing with the problem of Northern Ireland entered the 2000s with enactments geared towards the prevention of terrorism. ‘The Troubles’ formed the backdrop of the interment of Irish Republican ‘combatants’ and sympathisers in the 1970s as well as the introduction of the system of ‘Diplock Courts’ (non-jury criminal trials presided over by a single judge) in that part of the realm.

Over the past decade, Britain has been bedevilled by a number of legislative provisions which have raised concerns about maintaining key precepts of the rule of law while seeking to combat terrorism. These included the powers of search and arrest, indefinite detention and the morality of utilising evidence which is obtained by torture.

One source of controversy and contention by civil libertarians concerned section 44 of the Terrorism Act (2000) which provided the Home Secretary and the police with the power to designate specific areas within which they could stop and search any vehicle or person and seize “articles of a kind which could be used in connection with terrorism.”

Further, this power could be exercised without the usual requirement that the police should have a “reasonable suspicion” that an offence has been committed or is about to be committed.

Another severely criticised measure formed part of the Anti-Terrorism, Crime and Security Act (2001) which unlike the aforementioned Terrorism Act was passed in response to the atrocity in New York in circumstances which many would regard as rushed. It was designed to deal with those suspected of planning or assisting in terrorist attacks on British soil.

Section 23 of that Act resuscitated the idea of internment; in this case permitting the indefinite detention of a suspected “international terrorist” whose removal from the United Kingdom could not be facilitated due either to a matter of law arising from international obligations or a “practical” consideration. The latter usually means that the individual could not be deported because he would be at risk of being subjected to torture or other inhumane treatment including the death penalty.

It should be noted that although the section provided for review and appeal procedures to be conducted under the auspices of the Special Immigration Appeals Commission, this did not detract from what for all intents and purposes was indefinite detention.

Rather disturbingly, the United Kingdom government announced plans in September of 2012 to extend the system of ‘secret courts’, which are known as ‘closed material procedures’, to civil proceedings. Closed material procedures allow the authorities to present sensitive information to a trial which can only be seen by a judge and specially vetted “special advocates” who represent the complainant who is only given a loose summary of the evidence arrayed against him by his advocate.

The result of an enacted Justice and Security bill would arguably be to tilt the balance of the trial process in the government’s favour; a state of affairs which would suit the needs of a government potentially burdened by civil liability claims based on the torture of terrorist suspects by government agencies or the agencies of those nations allied to the United Kingdom.

This is not to say that the government has had its way in all its anti-terrorist measures and initiatives. Far from it. There have been legal challenges and rebellions by legislators which have succeeded in repealing certain provisions and modifying others.

For instance, in January of 2010, the aforementioned section 44 of the Terrorism Act (2000) was ruled to be illegal by the Strasbourg-based European Court of Human Rights which held that the right of two claimants to respect for a private and family life under article 8 had been violated. The powers granted to the police were, the court ruled, “not sufficiently circumscribed” and there were not “adequate legal safeguards against abuse”.

The indefinite detention allowed by section 23 of the Anti-Terrorism, Crime and Security Act (2001) was subjected to a judicial review in the United Kingdom’s highest court of appeal in A and Others v Secretary of State for the Home Department (2004). The case concerned foreign prisoners being held indefinitely at the Belmarsh high security prison in London.

The Judicial Committee of House of Lords (known now as the Supreme Court of the United Kingdom), owing to the constitutional doctrine of Parliamentary Sovereignty could not strike down the Act and made what is termed a ‘Declaration of Incompatibility’ under the terms of the Human Rights Act (1998) which incorporated the Human Rights Convention into U.K. law.

The court made it clear that indefinite detention could not be applied to U.K. citizens and that there was nothing to prevent the government from releasing the suspect to a country in which he would not be at risk from torture.

The subsequent repeal of part IV of the Anti-Terrorism, Crime and Security Act (2001) which contained section 23 led to the passage of the Prevention of Terrorism Act (2005) which introduced the power of the Home Secretary to issue an order against an individual “that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism”.

These so-called control orders enable a government minister to sign an order to place a terrorism suspect under close supervision in circumstances which are similar to a house arrest.

There are two forms of control orders. The first which is of one year’s duration allows for strict restrictions such as home curfews, electronic tagging and limits on who the subject can meet, while the second, which lasts for six months, involves opting out of some human rights provisions in a public emergency situation.

The control order laws were passed in the wake of compromises been made by government and opposition parties, but there are those who feel nonetheless that the existence of such a law goes against the principle of habeas corpus.

Other cases challenged government powers such as A v Home Department (No2) (2005) which ruled that evidence obtained by torture is inadmissible in a court of law.

Segments within the political class have also played a part in contesting perceived excesses in the potential granting of additional powers to the executive. For instance in 2008, a plan by the Labour administration of Gordon Brown under a Counter Terrorism bill to extend the period of time in which a suspect could be held without charge from 28 days to 42, was heavily defeated in the second chamber of Parliament, the House of Lords.

Described by some as “the biggest defeat in the Lords in living memory,” it was seen as a victory of commonsense by civil libertarians who felt that the government had other options at its disposal without the need to have recourse to an extension.

It must also be said that the aforementioned government proposal to extend the mechanism of ‘secret court’s which is currently being processed through the United Kingdom legislature has been subject to criticism by a range of Parliamentarians; from the opposition Labour party, as well as within the ruling coalition.

Such an extension is seen as an affront to the principle of ‘open justice’; a key tenet of the operation of the rule of law as indeed the potential bias in favour of prosecutors tends to denude the spirit of ‘natural justice.’

This initiative is rooted in the defeat suffered by the government in 2010 when judges in a civil case brought by British detainees at Guantanamo Bay alleging ‘wrongful imprisonment’ and ‘abuse’, ruled against an attempt by the Attorney General to suppress evidence of the British security services complicity in torture.

The court of appeal ruled that to render an alternative verdict would amount to “undermining one of (the common law’s) most fundamental principles” which was that “trials should be conducted in public and judgements should be given in public”.

In the United States too, measures put in place by both Bush and Obama administrations have come under heavy scrutiny and challenge.

As with the case in Britain, the rather troubling issue of indefinite detention has formed a critical form of contention. Section 1021 b of the National Defense Authorization Act contains detention policies relating to persons who the government suspect are involved in terrorism which are variously described as “broad” and “vague”.

Again the perennial fear of abuse of power by executive authority dominates the arguments of those against the measure who also see at a fundamental level, an attempt to abrogate the right of habeas corpus. The measures, which give the US military powers of arrest and detention, could conceivably be used against American citizens who could find themselves detained indefinitely without trial on suspicion of involvement in terrorism.

There are of course arguments that the relevant section does not allow for indefinite detention. This view is based on a distinction between detentions that are pursuant to the laws of war and those within the domestic sphere of criminal law. The latter would be processed in the conventional way while in the former situation, authority to detain would end upon the ceasing of hostilities.

A permanent injunction on the indefinite detention provisions issued in September 2012 was overturned on appeal by the Obama administration and will continue to be the subject of legal contention.

The other major source of legal challenge concerns the use of electronic surveillance aimed at keeping pace with potential threats to national security. The Foreign Intelligence Surveillance Act and subsequent amending legislation (including the USA PATRIOT Act), sets out procedures for monitoring the activities of foreign nationals as well as American citizens and permanent residents who may be engaged in espionage activities on behalf of a foreign power.

There are several issues linked to such concerns which have been or are being challenged in court. One angle, for instance, relates to privacy violations by certain telecommunications organisations which assist the government with the provision of information vital in the government’s estimation for national security purposes. The previous requirement that a federal judge sign a warrant authorising the interception of e-mails and telephone calls only after a justification supplied by the government was suspended by a secret order of President Bush.

Successive petitions have been rejected by US judges.

The ‘War on Terrorism’ was launched with much determination and unity of purpose in the United States, and as has been documented, the subsequent legislation to support this ‘war’ was passed with great haste and in an atmosphere of such emotional intensity that many legislators arguably failed to fulfil their duty of thoroughly scrutinising the PATRIOT Act before its enactment.

Some have argued that they were complicit in signing away many of the cherished rights and freedoms on which their nation was built.

But the massacre of September 11^th demanded some form of action including what could be termed ‘defensive’ measures to counteract the possibility of future outrages. The nation was forewarned that such measures would have an unavoidable impact on personal liberties.

The question of balancing individual rights with national security pits opposing beliefs on how this can be calibrated. There are those who insist that any curtailment in rights and freedoms is only relative and that the law abiding citizen has nothing to fear. Others are not so easy to mollify. They insist that government is quick to assert ownership of newer, ever increasing powers many of which are unjustified even with due regard to the potential threats faced by society.  

Put another way, the question to be asked is to what degree can the threat of terrorism be combated with the minimum of interference in the rights and freedoms of the general public?

America is not the first democracy to face such a threat and it is instructive to consider whether lessons can be learnt by casting an eye back in time at how the Italian state battled with the Brigate Rosse (Red Brigades), a Marxist revolutionary group, or how the West German authorities sought to defeat the Red Army Faction, also an extreme left-wing group, more popularly known as the Baader-Meinhoff Group.

The Italian government introduced stern measures related to the stopping, searching and detaining of terrorist suspects. Investigative powers were also increased through a relaxation of the rules governing wire-tapping.  One particularly successful strategy employed was a policy of offering reduced sentences to those who would turn evidence against their colleagues.

By the middle of the 1980s, the government had succeeded in purging the Red Brigades at arguably a small cost to the civil liberties of the general populace.

In West Germany, the police were granted extraordinary powers -subject to the approval of a judge- to search entire buildings for suspects. They could establish checkpoints on motorways to inspect the identification of travellers. The intelligence gathering capabilities of the security services were increased as well as the proficiency of armed response units who could be deployed at short notice to deal with kidnapping and hostage-taking incidents.

By the early 1980s, most of the Baader-Meinhoff group were either dead or incarcerated; and like the aforementioned situation in Italy, this was achieved without an overly negative cost to civil liberties.

But these case studies only go so far. The 1970s were a different time in terms of the technology available to terrorists and the methods of organisation. The membership of these groups was largely confined to one country.

The so-called ‘War on Terror’ is international in dimension and crucially is of an indeterminate period. There are politicians and security officials who have estimated that it could last for decades and may never be won, unless of course some sort of wider political settlement is achieved primarily in the Middle East.

The frequently expressed view that it is a perpetual ‘war’ marks it out as of a different breed of war compared to wars waged for territorial conquest. Its global dimension as well as it being waged against an acephalous foe complicates matters and arguably bolsters the case of those in power who appear to be willing to chip away at centuries-long principles and processes that have been the foundation of free societies.

How far should a country go when ‘defending’ itself against internal threats as well as the more amorphous threats of Al Quaeda? Pierre Trudeau was categorical in announcing that a society “must take every means at its disposal to defend itself against the emergence of a parallel power which defies the elected power.”

And while, as mentioned, his measures had the support of most of the population, particularly among the majority English-speaking segment, doubts, misgivings and then outright opposition would later materialise. A prominent Canadian trade unionist would accuse Trudeau of “cracking a nut with a sledgehammer”.

The admirable Tommy Douglas vociferously voiced his opposition to the invoking of the War Measures Act when there was little opposition against it. He warned in a television interview:

 “Every country that has had its freedoms and liberties curtailed has been told in advance that this was being done for their protection and it was only on a temporary basis.”

It is worth noting that both Pierre Trudeau and Barack Obama were professors of constitutional law. Yet, when confronted with the security versus liberty dilemma as chiefs of state,  both opted to pursue draconian options at the expense of prudent alternatives: Trudeau with the wholesale abrogation of civil liberties and Obama, famously reneging on an election promise to dismantle the Guantanamo security regime.

In truth, it is possible that the burdens placed on those in leadership; a dose of reality some would argue, can impose on even the most idealistic among them, an altogether different perception of how to approach this matter. Trudeau, who prior to his political career was a prominent advocate of individual rights, was fairly blasé when referring to the “bleeding hearts” who he chided “just don’t like to see people with helmets and guns”.

It is impossible to calibrate a definitively 'right' balance since the circumstances of conflicts differ. But there are arguably clear boundaries which some have been able to ascertain. Tommy Douglas for one related that the most severe restrictions on personal liberties, such as invoked by Trudeau, can only be accepted in conditions of total war; in other words, where the very existence of the nation is threatened.

This was enunciated by Lord Leonard Hoffman in his judgement in the aforementioned A and Others versus Secretary of State for the Home Department (2004) in which he poured scorn on the government’s argument that the derogation of the rights of the indefinitely detained foreign prisoners was due to the existing “national emergency”.

While the survival of Britain in a war against the might of Adolf Hitler’s armed forces hung in the balance, the capacity of terrorist groups such as Al-Quaeda to murder and inflict carnage; painful to bear as they would be, did not threaten “our institutions of government or our existence as a civil community.”

In fact, he argued that the danger to the community or as he put it, "the real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory." 

The task in the midst of the current threat of terrorism is therefore to ensure that the efforts geared towards the purported preservation of society do not end up destroying the society it seeks to protect.

Powers which undermine the rule of law or which attempt to constrict the ability of an independent judiciary to review the actions and decisions of the executive branch of government must be subject to forensic scrutiny by non-governmental interest groups, members of the legal profession, the legislators and by a concerned citizenry lest the exercise of untrammelled executive power lead professed democratic societies into an Orwellian abyss. They must indeed “watch” the government, but not in the passive sense as Pierre Trudeau implied.

“Eternal vigilance,” as Thomas Jefferson once wrote, “is the price of liberty.”

(c) Adeyinka Makinde (2012)

Adeyinka Makinde lectures in Public Law at a London University.