No Comment — May 4, 2010, 4:16 pm

Secrecy, Torture, and the Common Law

Much of the debate about possible trials of Guantánamo prisoners in a federal court and much of the struggle in proceedings at Guantánamo has a dark subtext. The Obama Administration and supporters of the Bush Administration are intent on suppressing evidence that prisoners were tortured and avoiding accountability for those who tortured. To this end, the government pleads for secret evidence, attempts to ban the public from hearings, and disguises individuals involved in the interrogation process as “interrogator x.” All of these efforts reflect a trashing of centuries-old traditions requiring the public presentation of evidence and accountability for all, including those who give evidence. Today, a court in England has gone to great lengths to remind us of our shared legal heritage. The Guardian reports:

The court of appeal has ruled that the government cannot use secret
evidence in the case being brought against it by Binyam Mohamed
and five other former Guantánamo Bay detainees over torture
allegations. The court of appeal has dismissed an attempt by MI5 and MI6 to suppress evidence of their alleged complicity in the torture and secret transfer
of British residents to Guantánamo Bay. In a devastating judgment, it ruled that the unprecedented attempt by the security and intelligence agencies, backed by the attorney general and senior Whitehall officials, to suppress evidence in a civil trial
undermined deep-seated principles of common law and open justice. MI5 and MI6 said evidence in the case, in which the Guardian, the Times
and the BBC intervened, should be kept secret from everyone except the
judges and specially appointed and vetted counsel.

In their ruling, Lord Neuberger, master of the rolls, Lord Justice
Maurice Kay, and Lord Justice Sullivan said that accepting the case of
the security and intelligence agencies would amount to “undermining one
of [the common law's] most fundamental principles”.

“A further fundamental common law principle is that trials should be
conducted in public, and the judgments should be given in public. In our view the principle that a litigant should be able to see and
hear all the evidence which is seen and heard by a court determining
his case is so fundamental, so embedded in the common law that, in the
absence of parliamentary authority, no judge should override it, at any
rate in relation to an ordinary civil claim …”

The full opinion can be examined here.

The decision was rendered on the basis of the common law, the legal tradition that was incorporated as a part of United States law in 1789 and also served as the basis for the law of the original American states. The principles noted by the Court of Appeal were all incorporated into the common law by the time of the American Revolution and thus all also belong to American law.

The Court of Appeal’s decision to resolve the matter on the basis of seventeenth-century precedent, and not current international law doctrines, has an obvious impetus, which is to remind the Americans of a shared bond. Unfortunately, even as the decision was being announced in London, the American government was doing its best to establish different rules for Guantánamo. At present, it looks like the torture secrets of the Bush-Cheney era will be exposed in the courts of England, while in America they will be kept secret.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

June 2016

The Improbability Party

= Subscribers only.
Sign in here.
Subscribe here.

Trump’s People

= Subscribers only.
Sign in here.
Subscribe here.

The Old Man

= Subscribers only.
Sign in here.
Subscribe here.

The Long Rescue

= Subscribers only.
Sign in here.
Subscribe here.

New Television

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Helen Ouyang on the cost of crowd-sourcing drugs, Paul Wood on Trump's supporters, Walter Kirn on political predictions, Sonia Faleiro on a man's search for his kidnapped children, and Rivka Galchen on The People v. O. J. Simpson.

The new docudrama The People v. O. J. Simpson: American Crime Story (FX) isn’t really about Orenthal James Simpson. It’s about the trials that ran alongside his — those informal, unboundaried, court-of-public-opinion trials in which evidence was heard for and against the murder victims, the defense and the prosecution, the judge, the jury, and the Los Angeles Police Department, to say nothing of white and black America. History has freed us from suspense about Simpson’s verdict, so that the man himself (played here by Cuba Gooding Jr.) is less the tragic hero he seemed in the mid-Nineties than a curiously minor character. He comes to the center of our attention only once, in Episode 2, at the end of the lengthy Ford Bronco chase scene — which in real life was followed by a surreal cavalcade of police cars and media helicopters, as well as an estimated 95 million live viewers — when Simpson repeatedly, and with apparent sincerity, apologizes for taking up so much of so many people’s time. It is an uncannily ordinary moment of social decorum, a sort of could-you-please-pass-the-salt gesture on a sinking Titanic, in which Simpson briefly becomes more than just an archetype.

Photograph (detail) © Eve Arnold/Magnum Photos
Article
Trump’s People·

= Subscribers only.
Sign in here.
Subscribe here.

"All our friends are saying, load up with plenty of ammunition, because after the stores don’t have no food they’re gonna be hitting houses. They’re going to take over America, put their flag on the Capitol.” “Who?” I asked. “ISIS. Oh yeah.”
Photograph by Mark Abramson for Harper's Magazine (detail)
Article
The Long Rescue·

= Subscribers only.
Sign in here.
Subscribe here.

He made them groom and feed the half-dozen horses used to transport the raw bricks to the furnace. Like the horses, the children were beaten with whips.
Photograph (detail) © Narendra Shrestha/EPA/Newscom
Article
The Old Man·

= Subscribers only.
Sign in here.
Subscribe here.

The new docudrama The People v. O. J. Simpson: American Crime Story (FX) isn’t really about Orenthal James Simpson. It’s about the trials that ran alongside his — those informal, unboundaried, court-of-public-opinion trials in which evidence was heard for and against the murder victims, the defense and the prosecution, the judge, the jury, and the Los Angeles Police Department, to say nothing of white and black America. History has freed us from suspense about Simpson’s verdict, so that the man himself (played here by Cuba Gooding Jr.) is less the tragic hero he seemed in the mid-Nineties than a curiously minor character. He comes to the center of our attention only once, in Episode 2, at the end of the lengthy Ford Bronco chase scene — which in real life was followed by a surreal cavalcade of police cars and media helicopters, as well as an estimated 95 million live viewers — when Simpson repeatedly, and with apparent sincerity, apologizes for taking up so much of so many people’s time. It is an uncannily ordinary moment of social decorum, a sort of could-you-please-pass-the-salt gesture on a sinking Titanic, in which Simpson briefly becomes more than just an archetype.

Illustration (detail) by Jen Renninger
Article
New Television·

= Subscribers only.
Sign in here.
Subscribe here.

With its lens shifting from the courtroom to the newsroom to people’s back yards, the series evokes the way in which, for a brief, delusory moment, the O. J. verdict seemed to deliver justice for all black men.
Still from The People vs. OJ Simpson: American Crime Story © FX Networks

Amount an auditor estimated last year that Oregon could save each year by feeding prisoners less food:

$62,000

Kentucky is the saddest state.

An Italian economist was questioned on suspicion of terrorism after a fellow passenger on an American Airlines flight witnessed him writing differential equations on a pad of paper.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today