Magna Carta at center of controversies on two sides of the Atlantic

President Bush and Prime Minister Brown at a press conference today.
REUTERS/Jason Reed
President Bush and Prime Minister Gordon Brown at a press conference in London today.

CAMBRIDGE, England — President Bush’s European tour took him to London yesterday — June 15, which is the day Britain celebrates the anniversary of the Magna Carta.

Last week was a busy one on both sides of the Atlantic for the legacy of the 793-year-old document that is revered as the foundation for justice in the English-speaking world.

Back in 1215, the barons revolted against King John’s rule. On June 15, his great seal was attached to the barons’ list of demands. The treaty was remarkable in that it was the first time subjects had managed to limit the power of their ruler.


For the most part, it is the spirit of that profound turnabout in power we honor today.

The right to challenge detention
Little survives in actual law from the original document, with one notable exception: the right to habeas corpus. If King John’s royal sheriffs threw someone in prison, the arrestee was supposed to have the right to appear in court and challenge the detention.

Poet Rudyard Kipling put it this way: No freeman shall be fined or bound,/Or dispossessed of freehold ground, /Except by lawful judgment found/And passed upon him by his peers. 

Now, in this age of terrorism and security fears, Bush and British Prime Minister Gordon Brown both are dealing with their own habeas corpus headaches. Their issues differ in significant details. But the underlying principle is the same.

Brown’s crisis erupted last week when he pushed through the House of Commons a bill that would give police the power to hold and question terrorism suspects in exceptionally threatening cases for as long as 42 days before having to charge or release them. The current limit is 28 days, up from 7 days in 2000.

Brown and his allies argued that investigations of terrorism are immensely complicated. Investigators need time to sort through huge amounts of encrypted material from computers, foreign connections, multiple languages and suspects with multiple identities.

Police backed the bill, as did a majority of the public.

‘Grubby bazaar’
But the opposition was intense. Not only civil-rights groups but also members of Brown’s own Labour Party argued it would betray the spirit of the Magna Carta to hold someone who may be innocent for up to six weeks with no right to challenge the detention in court.

Conservatives had no intention of helping Brown dodge the heat of the controversy. His leadership already was in grave trouble. Tory leader David Cameron had pulled ahead of Brown in the polls and was seen by many as likely to become prime minister in 2010, the Economist reported.

Already trusted as tough on terrorism, Cameron dismissed Brown’s bill, saying, “Terrorists want to destroy our liberties. When we trash our liberties, we do their job for them.”

After the bill passed by a razor thin margin, critics accused Brown of cutting back-room deals for votes. Even members of his own party said he had traded civil liberties in a “grubby bazaar,” the Guardian reported. Brown denied buying votes, but that didn’t end accusations that rose to the level of scandal in the British press.

Protect Magna Carta
Scandal gave way to shock the next day when a prominent Conservative, David Davis, resigned his seat in Parliament because of the vote.

“For centuries we defended the freedom of people … up until yesterday,” Davis said in his resignation statement, published in the Independent.

“This Sunday is the anniversary of Magna Carta, a document that guarantees the fundamental element of British freedom, habeas corpus,” Davis continued. “But yesterday this house allowed the state to lock up potentially innocent citizens for up to six weeks without charge.”

Davis predicted the House of Lords will reject the bill in order to “protect Magna Carta,” Still, Brown could use powers he holds to overrule the Lords, Davis said.

Forced a special election
So Davis used his resignation to force a special election in his Northeastern England district. He will run, he said, and use his campaign as a platform for debating what he called “one of the most fundamental issues of our day.”

The Economist noted that a good share of Conservative Party politics is at play in Davis’ bold move. It surprised Cameron, the conservative leader, and thrust Davis ahead of him in the spotlight.

For his part, Brown called it a “stunt that has become a farce.”

Six years v. six weeks
The habeas issue that won’t go away for Bush involves 270 detainees at the U.S. lockup at Guantanamo Bay, Cuba.  Six years ago, the Bush administration aimed to find a way around the legacy of the Magna Carta in the cases of foreigners deemed to be enemy combatants. The Guantanamo facility was to be a legal black hole where foreign terror suspects could be held with no right to appear in civilian courts.

Three times now the U.S. Supreme Court has said no, most recently last week when it said the detainees have the right to challenge their detention before federal judges.

Six years at Guantanamo without a right as basic as habeas corpus may seem enormous compared to the proposed six-week detention the British are roaring about.

Straightforward comparisons are not apt, though. Unlike the foreigners who were seized overseas then locked up at Guantanamo, terror suspects arrested in the United States can be held for just a few days without being charged or let go. There are other significant differences.

A test for U.S. judicial system
But now that the Guantanamo detainees have habeas rights, the American system is poised to test its ability to honor the spirit of the Magna Carta while also securing itself against dangerous terrorists.

“Habeas corpus has been grandly re-established at Guantanamo,” Benjamin Wittes of the Brookings Institution wrote in an opinion piece for the Washington Post.

But that does not mean the government is holding a single person illegally at the base. And it does not give any detainee automatic freedom. 

“The result is that 6½ years after the Sept. 11 attacks, America still faces many of the fundamental questions about detentions that it faced the day the military brought its first captives to Cuba,” he said.

“Congress, in short, needs to design a system open enough for the public to know how scary some detainees really are and adversarial enough to credibly separate the wheat from the chaff.”

Meanwhile, Bush has an option Brown wouldn’t welcome at this point. At year’s end, Bush can walk away from the ancient burden of the Magna Carta and leave its modern-day challenges for the next administration.

Sharon Schmickle writes about foreign affairs and science. She can be reached at sschmickle [at] minnpost [dot] com.

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Comments (3)

  1. Submitted by Ed Felien on 06/16/2008 - 12:35 pm.

    Sharon Schmickle is not quite right in saying the Magna Carta was the first instance of habeas corpus or subjects having control of their rulers. The Romans should get credit for that–though they seldom do. There is a wonderful reference to it in Acts of the Apostles when St. Paul says the Roman guards cannot arrest him as a terrorist and revolutionary unless he is given a fair trial. Our born-again President should read his New Testament.

  2. Submitted by Susan Herridge on 06/17/2008 - 12:59 pm.

    I missed this when it first posted. Thank you, Sharon. This is a fascinating read and, as you point out, very topical in both countries. Even though I read The Economist, I have been more enthralled by their coverage of the U.S. election and must have sort of skipped over this. Sometimes we need someone else to pencil in the connections for us.


    PS and thank Ed, for your correction. That’s pretty interesting, too.

  3. Submitted by Ron Gotzman on 06/18/2008 - 06:24 pm.

    “Mr. Bin Laden, you have the right to remain silent…”

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