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Bancoult v. McNamara, latest (below)

Diego Garcia: The “criminal question” doctrine

by Charles Judson Harwood Jr.

Picture this:

You’re at home one evening and an armed convoy rolls into town. Soldiers arrest you and your family, and everybody else – the whole town. They allow you to pack one suitcase each; load you all into trucks; machine-gun all your livestock and pets; burn your house and contents; and a few days later deposit you on a street-corner in a slum in Mexico City. They inform you that the U.S. Government needs your town for a military base, and that the Border Patrol, Immigration Service, and Coast Guard have been ordered to prevent your return to the States, and by force if you insist.

Your lawyer tells you that U.S. Courts will not hear your complaint, because the decision by U.S. Officers to do this is a ‘discretionary function’ and a ‘political question’ which U.S. Courts will not interfere with; that s/he can be fined by the Court for even filing such a hopeless complaint; and that you have no remedy for your troubles – at least no peaceable remedy.

Now what are you going to do?


U.S. Navy Support Center, Diego Garcia, "Island History": http:// www.dg.navy.mil/ history/frameset.htm
World map
Chagos map-1
Chagos map-2
Diego map-1
Diego map-2
Space photo
Aerial photo-1
Aerial photo-2
Runway photo
Ramp photo

Beginning in 1971, the U.S. constructed an Air Force base on Diego Garcia, a coral atoll in the middle of the Indian Ocean, south of the equator 440 nautical miles (7° 20′ S, 72° 25′ E). And, by dynamiting a passage through the reef, a submarine base and a Navy harbor in the large, deep, natural lagoon (13 × 6 miles × 60-100 feet) for “prepositioning” equipment and supplies, in 21 fully-loaded ships at moorings, and in warehouses, for U.S. military operations in the “Arabian Gulf, the Middle East, South Asia, and East Africa”, 12-days away. 1 

It’s the largest island (10.5 square miles) of 65 in the Chagos archipelago, a 22,000 square mile ‘British Indian Ocean Territory’. The 1966 U.S./U.K. joint-venture agreement expires December 29 2036 (2016 were either to terminate it by then).

From 1967 to 1973, British officials and military officers – in secret and for a secret fee of $14 million, paid by the U.S. military unlawfully (without Congressional authorization) – forcibly evicted, arrested, detained, deported, and excluded permanently from their homeland the entire indigenous citizen population of all 65 islands (every last man, woman, and child), an ethnic-cleansing which (as they secretly admitted at the time) violated the United Nations Charter and other U.S. and international law and, as a British Court ruled 30 years later, British domestic law as well (Nov. 3 2000):

{¶ 57}  “Section 4 of the Ordinance effectively exiles the Ilois from the territory where they are belongers and forbids their return. But the ‘peace, order, and good government’ of any territory means nothing, surely, save by reference to the territory’s population. They are to be governed: not removed. ... I cannot see how the wholesale removal of a people from the land where they belong can be said to conduce to the territory’s peace, order and good government. ... In short, there is no principled basis upon which section 4 of the Ordinance can be justified as having been empowered by section 11 of the BIOT Order. And it has no other conceivable source of lawful authority.” 2 

Curiously, the editors of the Washington Post and the New York Times did not report the Court’s decision – even though each purports to be a ‘newspaper of record’ (NYT masthead motto: “All the News That’s Fit to Print”), even though each has its own Bureau in London (where the decision was reported prominently by newspapers, television, and radio), and even though each subscribes to the Associated Press which also reported the decision directly to them 3 ; ditto the editors of their jointly-owned daughter newspaper in Paris, the International Herald Tribune.

British officials accepted their Court’s decision, and did not appeal. They announced the indigenous citizens (the Ilois) were now free to return to their “outer” homeland islands, but not to Diego Garcia, which remains under U.S./U.K. military command and control (no Press or other visitors allowed). 4 

But, U.S. officials and military officers oppose this plan, claiming to fear terrorists, spies, and electronic jamming from these other islands, 140 miles distant – their constant claim through 4 decades. And, obligingly, British officials a year later (Oct. 2001) disallowed an initial reconnaissance trip they had previously authorized (for Nov. 3) by indigenous citizens to visit their homes and the graves of their ancestors on their outer homeland islands. 5 

The Chagos islanders responded with claims for damages against both the U.S. and the U.K., followed a year later (when their claims were ignored) by new lawsuits, against both governments, for damages. The U.S. has spent several billion dollars constructing its facilities at Diego Garcia and building a new fleet of ships to moor there, loaded with military hardware and supplies. Yet, the U.S. won’t spend 5-cents to compensate the several thousand citizens whose lives they trashed in the process. Ditto, the U.K. which paid most of them little or nothing. 6 

On June 26 2002, British officials proposed a new first visit (Oct. 2002), to two islands only, for a few days only, for 100 islanders only, and for the particular 100 only whom they approved of. The Islanders declined this offer. Citizens desiring to enter their own homeland, they stated it’s no business of the U.K. government to be “dictating to them the names of the people to make the trip”. And, they cited refusal of their visit to Diego Garcia, home to 359 of them still, at their final expulsion in 1971.

Meanwhile, British and U.S. officials, by armed-force, continue to intercept and prevent the Ilois from returning to any of their homeland islands on their own initiative in fishing boats, or even stepping ashore for an hour, while welcoming hundreds of yatching tourists each year for extended stays. 7 

Thus, officials of both the U.S. and the U.K. (joint-venture partners) continue to act with specific intent now in willful violation of a British Court Order, as well as U.S., U.K., and international law, as before. The islanders have not brought civil or criminal contempt proceedings in the U.K. Court to compel British officials to obey the Court’s Order (which quashed the previous immigration ordinance) or to punish them for disobeying that Order by continuing to enforce their unlawful deportations.

In its fact sheets 8  on the history of Diego Garcia, the U.S. Navy omits to mention the former inhabitants, or what became of them, and thereby continues the complicity of its own officers in these events by concealing the continuing illegality from their commanders (who have a duty to order their partner, the U.K. Government, to terminate it and to arrest U.K. officials who won’t obey the order) and the continuing complicity of U.S. officials, and particularly U.S. Naval and other military officers, in inciting, conspiring, aiding-and-abetting, facilitating, and participating directly in this continuing, unlawful, state-sponsored, international, terrorist conspiracy – an international ‘crime against humanity’ 9  – against helpless, innocent, indigent, indigenous citizens (now destitute and numbering about 4,500) 10  and continuing conspiracy to pervert, corrupt, and obstruct justice and the rule-of-law in the United Kingdom: a trans-generational Operation Enduring Grief, Enduring Penury, Enduring Injustice, Enduring Crime, and Enduring Rage, for which the U.S. makes no apology, pays no compensation, and permits no peaceable remedy in any court-room. 11 

Why do people hate America?


 1  See generallyPrepositioned Forces’, chapter 4 of Moving U.S. Forces: Options for Strategic Mobility (U.S. Congress, Congressional Budget Office, Feb. 1997). For details of prepositioning ships and cargo, including the 21 moored at Diego Garcia, seeMilitary Sealift Command’, and its sub-pages: http://www.globalsecurity.org/military/agency/navy/msc.htm.

 2  Lord Justice Laws The Queen (ex parte Bancoult) v. Foreign and Commonwealth Office, [2001] Q.B. 1067, 1104 ¶ 57 (High Court of England and Wales, Queen’s Bench Division, Administrative-Divisional Court, London, Nov. 3 2000, Judges Lord Justice John Grant McKenzie Laws, Mr. Justice Richard John Hedley Gibbs; not appealed), italic emphasis by the Judge. BIOT: ‘British Indian Ocean Territory’, which the British withheld from Mauritius and created specifically to enable this secret ethnic-cleansing and the hand-over of Diego Garcia to the U.S., as the Court documented ([2001] Q.B. 1067, 1083 ¶ 14).

See generallyThirty years of lies, deceit and trickery that robbed a people of their island home’ (The Guardian, London, Nov. 4 2000, p.3); ‘Revealed: Britain took £5m ‘bribe’ to evict islanders’ (The Independent, London, July 15 2000); ‘Britain Illegally Expelled Chagos Islanders for U.S. Base, Court Rules’ (Los Angeles Times Nov. 4 2000, p.A-11); ‘The Chagos Islands: A sordid tale’ (BBC News, Nov. 3 2000).

 3  Associated Press ‘Court ruling backs islanders displaced to build military base’ (The Independent, London, Nov. 3 2000).

 4  Written answer, John Battle MP and Foreign Office Minister (Hansard, Nov. 13 2000), and, e.g.,Evicted islanders to go home’ (The Guardian, London, Nov. 4 2000, p.1).

 5  Fears: Eric Newsom (U.S. State Department, June 21 2000); 4 decades: ¶11 The Queen (ex parte Bancoult) v. FCO; 140 miles: Eric Newsom and Chagos map; ‘U.S. base deals blow to displaced islanders’ (The Guardian, London, Oct. 9 2001); ‘Evicted islanders accuse Britain’ (The Times, London, Nov. 7 2001, p.15, archive chargeable); statement, Tam Dalyell MP (Hansard, Nov. 22 2001).

 6 Pentagon sued for $6 billion by evicted islanders’ (The Times, London, Dec. 13 2000, p.18, archive chargeable; ‘Displaced islanders seek compensation’  (The Independent, London, Jan. 10 2001); ‘Islanders Sue U.S. Over Relocation’  (Washington Post, Dec. 21 2001, p.A5); ‘Islanders sue Britain for eviction’ (The Times, London, May 25 2002, p.4, archive chargeable). A few years later, in late 1973, Britain gave Mauritius £650,000 for its costs in the resettlement, but this money was not given to the islanders.

 7  Written answer, Mike O'Brien MP and Foreign Office Minister (Hansard, June 26 2002); ‘Islanders in Diego Garcia stand-off ’ (BBC Monitoring, June 30 2002); the final 359: ¶6, The Queen (ex parte Bancoult) v. FCO; statement Jeremy Corbyn MP (Hansard, Feb. 13 2002); armed-force interceptions: affidavits; yachting tourists: journals and reports.

 8  U.S. Navy fact-sheets on the history of Diego Garcia (visited Aug. 15 2002): (U.S. Naval Computer and Telecommunications Station, Diego Garcia); (U.S. Navy, Military Sealift Command); (U.S. Navy Support Facility Diego Garcia). The several U.S. Air Force web-sites for Diego Garcia are off-line to the public.

 9  Rome Statute of the International Criminal Court which declares long-standing law on the “deportation or forcible transfer of population”, a “crime against humanity” (Article 7), and on the criminal responsibility of individual government and military officials who knowingly participate (Articles 25-33); logically, this crime and tort includes their present-day acts of complicity to maintain and enforce the deportations.

 10  The complaint in the U.S. District Court alleges (¶ 8): “Today, there are approximately 4,466 Chagossian men, women, and children who either were born in Chagos or are direct descendants of individuals born in Chagos.” By one previous estimate, 7,818 Ilois now live on Mauritius and about 1000 more on the Seychelles: ‘Diego Garcia exiles say Britain owes passports’ (The Guardian, London, April 6 2001).

 11  SeeBancoult v. McNamara”, (D.D.C., No.01-cv-2629, filed Dec. 20 2001), the pending class-action against the U.S. Government, andThe ‘criminal question’ doctrine”, a note on the U.S. judicial doctrine of ‘political question’.

Annex: Diego Garcia

On separate pages:

1 Bancoult v. McNamara, complaint filed, Dec. 20 2001, dismissed, 370 F.Supp.2d 1 (D.D.C., No. 01-CV-2629, Dec. 21 2004), appeal docketed, Feb. 22 2005, affirmed, 445 F.3d 427 {147kb.pdf, copy} (D.C. Cir., No. 05-5049, April 21 2006), petitions to rehear and en banc filed, June 5 2006, denied, July 11 2006, petition for certiorari docketed, Oct. 11 2006, denied, Jan. 16 2007 (U.S., No. 06-502).

2 Queen v. Secretary of State for Foreign and Commonwealth Office Ex Parte Bancoult, [2000] EWHC Admin 413 {copy, related cases} (High Court of England and Wales, Administrative Court, Case No: CO/3775/98, November 3 2000, judges: John Grant McKenzie Laws (lord justice, Court of Appeal), Richard John Hedley Gibbs (justice, Queens Bench)) (not appealed).

3 Chagos Islanders v Attorney General Her Majesty's British Indian Ocean Territory Commissioner, [2003] EWHC 2222 (QB) {1.7mb.html} {copy} (High Court of England and Wales, Queens Bench Division, Case No: HQ02X01287, October 8 2003, judge: Duncan Brian Walter Ouseley), affirmed, [2004] EWCA Civ 997 {copy} (Court of Appeal, England and Wales, Case No: A2/2004/0224, July 22 2004, judges, Elizabeth Butler-Sloss (president), Stephen John Sedley, David Edmond Neuberger (lord justices)).

4 Orders in Council, adopted June 10 2004 {28 kb doc}, announced June 15 2004, excluding the islanders from their homeland. Adjournment debate, “British Indian Ocean Territory” Hansard (U.K. House of Commons, July 7 2004, columns 271WH-295WH). Debate, “Business of the House” Hansard (U.K. House of Commons, September 16 2004, columns 1455-1471, at 1463) (question by Jeremy Corbyn).

5 The Queen on the Application of Louis Olivier Bancoult v. Secretary of State for Foreign and Commonwealth Affairs, [2006] EWHC 1038 (Admin) {copy} (High Court of England and Wales, Divisional Court, Administrative Court, Case No: CO/4093/2004, May 11 2006, Hooper (Lord Justice, Court of Appeal), Cresswell (Justice, Queens Bench)), affirmed, Secretary of State for the Foreign and Commonwealth Affairs v. The Queen (on the application of Bancoult), [2007] EWCA Civ 498 (Court of Appeal, England and Wales, Case No: C1/2006/1465, May 23 2007, judges, Anthony Peter Clarke (master of the rolls), Stephen John Sedley, George Mark Waller (lord justices)), reversed, R (on the application of Bancoult) (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant), [2008] UKHL 61 {source, 278kb.pdf, bailii} (House of Lords, Wednesday October 22 2008, 9:45am), Law Lords appellate committee split decision 3-to-2: Lords Hoffmann, Rodger of Earlsferry, Carswell, dissenting, Bingham of Cornhill, Mance (“Subject matter: Royal prerogative; Abuse of power; Validity of British Indian Ocean Territory Orders in Council; Constraints upon prerogative power to legislate for colonies; Legitimate expectation”).

6 U.S./U.K. BIOT agreements, 1966-1982: “(7)(a) the United States Government and United States contractors shall make use of workers from Mauritius and Seychelles to the maximum extent practicable, consistent with United States policies, requirements and schedules; and (b) the appropriate administrative authorities of the two Governments shall consult before contractors or workers from a third country are introduced.” (December 30 1966).

In the intervening 42 years, the U.S. has not employed a single Chagos citizen (or anybody else from Mauritius or Seychelles). Instead, the U.S. imports hundreds, thousands, of Filipinos, to perform civilian jobs on Diego Garcia. And the U.K. says, “Amen.”  CJHjr (October 22 2008).

7 Debates and statements in the U.K. Parliament.

8 Other documents

9 CIA World ‘Fact’book (Diego Garcia), and criminal lies.

10 John Pilger, “Paradise Cleansed: Our Deportation of the People of Diego Garcia is a Crime That Cannot Stand (Guardian, London, October 2 2004) {copy}. John Pilger, Stealing a Nation (video, documentary, first broadcast in the U.K., on ITV, October 6 2004).


This document may be freely copied.


Charles Judson Harwood Jr.

Posted Sept. 1 2002. Updated Oct. 22 2008.


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