The Telegraph's Con Coughlin wrote a piece last week in which he stated that when British judges upheld the rule of law in the Binyam Mohammed case, they revealed that they were Taliban sympathisers and would be equally to blame with Osama Bin Laden if London is bombed again (if you look at his article, you will see that I am not exaggerating). I wrote a response on Conservative Home, in which I thought you might be interested.
The exchange between us provoked responses in the Spectator, the Guardian, the Wall Street Journal and a further piece from Coughlin himself.
Suffice it to say, I stand by the position I've already expressed – that
I want us to defend a society in which we believe in innocence until proven guilty, freedom of speech, even for those with whom we disagree, and, perhaps controversially to your mind, not torturing people…
For these purposes, I don't care if he was serving with the Taliban. That service against our country would mean many things, including rendering him a legitimate target for warfare in the theatre of war, but it does not render him a legitimate target for torture, because nobody is. There are certain things that no civilised state should do, no matter how severe the provocation. Torture is one of them. It is the lot of free societies to fight with one hand tied behind our backs against the thugs who oppose our values. These are the values which make us different from them and giving them up grants them victory even as you torture them. For this reason, if we caught him we shouldn't even torture someone like Osama Bin Laden, let alone someone released without charge after several years of imprisonment.
And that's the point, isn't it? Mohamed hasn't been convicted of anything. Coughlin keeps questioning the account Mohamed has given of his time in Afghanistan, as if the "Con Coughlin reckons you done it" standard ought to apply in the justice system rather than the rule of law and the presumption of innocence.
I learned in my time at the Bar that it is precisely when the odds are stacked against a defendant that he most needs the benefit of a fair justice system – that it is when the evidence is apparently strongest that the rule of law is most important. Megarry J said in John v Rees  that the path of the law is strewn with examples of open and shut cases whcih, somehow, were not; of unnswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained… Coughlin is not interested in those notions – of testing evidence by due process, of a fair trial acting as a buffer between the wrath of the people and the individual. He wants to have his cake and eat it – to avoid any opportunity for Mohamed to present his defence properly in a court of law, and still say that he is certain of his guilt. It is important to point out what Coughlin is for when he is against fair trial. It is not hyperbolic, but accurate, to say that Coughlin's is an argument for the rule of the mob.
Coughlin goes on to insist in his response piece that he believes in a fair trial for "innocent people". Which rather defeats the point to my mind. I believe that suspected and indeed guilty terrorists should receive fair trials. I believe that they should receive exactly the same legal treatment as thee and me. I accept that these are difficult issues, and that there is a threat posed to us and our way of life by Al Qaeda, but I believe that it is precisely when it is hard to live by our principles that we should adhere to them – that these are the tests for which they were intended, and that it they were solely for good and easy times then they plainly weren't worth much after all (and in any case, as I have argued elsewhere, that threat is objectively less than that posed by the IRA in the past and certainly fails to justify changing our liberties and freedoms to anything like the degree seen in the UK).
The only way that habeas corpus, trial by jury, freedom from torture and so on are guaranteed for you is to insist that any and everyone in the United Kingdom gets exactly the same treatment that we would expect to receive ourselves. As soon as the powers that be are allowed to select who gets these rights, as soon as they are not rights but privileges, then we’re due for a recital of First, they came…
Postscript: You'll see that Coughlin, attacked by others since, has mounted yet another defence of himself over at the Telegraph. Not waving, but drowning…
By Alex Deane