Global Policy Forum

By Diana R. Gordon

In his 2003 State of the Union speech, George Bush said that "One by one, the terrorists are learning the meaning of American justice." A year later, the facts of the matter are increasingly disturbing: While detained in a Navy brig in North Carolina, James Yee was kept in leg irons and allowed to read nothing but the Koran, his lawyer asserts. The former Muslim chaplain was initially suspected of aiding terrorism but is now charged with taking home a few classified documents. Repeated charges that U.S soldiers have shot and otherwise abused Iraqis in a US prison near Baghdad are finally to be investigated. Detainees at Guantánamo are being held in tiny cells for up to 24 hours a day and have no access to lawyers, even when under interrogation.

The Western public is used to thinking of practices like this as the depredations of authoritarian states. But in the new millennium they are as normal for United States policy as the latest orange alert.

The Bush administration's handling of detainees at home and abroad looks uncomfortably like apartheid justice. According to a July 2003 Amnesty International memorandum based on inspection of detention centers in Iraq, "Detainees continue to report suffering extreme heat while housed in tents; insufficient water; inadequate washing facilities; open trenches for toilets; no change of clothes, even after two months' detention; no hygiene packs and no books, newspapers, radios or writing materials." It sounds like the experience of Nelson Mandela, who wrote in his autobiography of being held with five other colleagues accused of treason in filthy cells, of having only "a single sanitary pail with a loose lid and vermin-infested blankets." Iraqis have been forced to stand outside for days on end in the blistering heat, calling to mind the years Mandela spent laboring under the African sun in the Robben Island lime quarry.

Today's democratic South Africa doesn't treat even its worst enemies this way.

Consider the treason trial that will resume there on January 26. White racist extremists are charged with setting off bombs in Soweto a year ago and trying to blow up a bridge and an airport—a total of 42 crimes. While their plan to overthrow the ten-year-old government of the African National Congress was admittedly nutty—it included marching the black majority up the super-highways and out of the country—it was the first substantial, violent challenge to the new regime and therefore to be taken seriously.

The case against the Boeremag (Afrikaans for "Boer force," meaning a kind of army) members demonstrates to the world that criminal justice in democratic South Africa has come of age While there were complaints during the investigation about police raids (with warrants) on members of other right-wing organizations and defendants allege that privileged documents were seized, there have been no charges that defendants were illegally arrested or that they were tortured during interrogation, which was the norm in the apartheid past. Unlike the United States, where the Bush administration has refused the Guantanamo detainees access to civilian courts to challenge their detention—the justification is that they are not being held on U.S. territory—Boeremag defendants may bring even the most trivial grievances to the court. When they complained that "black" music played on the prison sound system was "torture," the volume was lowered. The judge even permitted one of the accused to marry while in detention—with several of his co-defendants in attendance. The defendants have champions to deny their guilt and defy the court's jurisdiction over them; one group has announced it will petition the UN to declare the Constitution under which they are being held to be invalid. Yet no government action is being taken to repress these efforts; the public reaction tends toward bemusement.

Perhaps most striking is the difference in the way South Africa and the United States have handled legal representation. While the Bush administration asserts that Guantánamo detainees have no right to counsel and has frequently denied access to lawyers for those held in Iraq, the South African government is paying for legal representation for many of the Boeremag defendants; some were even released on bail while awaiting trial. These differences might be explained by indications of a greater danger posed by the prisoners in Cuba; but the Guantánamo detainees have yet to be charged with crime and it is still unclear how many of them are actually even suspects. The evidence is strong, however, that the South African accused committed acts that killed one woman and were intended to spread terror among millions of people.

Despite many flaws in contemporary South African criminal justice, when it matters most it is proving to be an instrument of democracy. The very normalcy of the treason trial is testimony to the achievements of a rights-oriented Constitution and the institutional reforms that it has spawned. In the conduct of the post-apartheid government as it responds to threats against democracy there are lessons for the American war on terrorism.