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:

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

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

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

United States Canada

CATEGORIES

THE CURRENT ISSUE

March 2016

Save Our Public Universities

= Subscribers only.
Sign in here.
Subscribe here.

The Rogue Agency

= Subscribers only.
Sign in here.
Subscribe here.

Mad Magazines

= Subscribers only.
Sign in here.
Subscribe here.

Killer Bunny in the Sky

= Subscribers only.
Sign in here.
Subscribe here.

Bird in a Cage

= Subscribers only.
Sign in here.
Subscribe here.

The Hidden Rivers of Brooklyn

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Save Our Public Universities·

= Subscribers only.
Sign in here.
Subscribe here.

“Whether and how we educate people is still a direct reflection of the degree of freedom we expect them to have, or want them to have.”
Photograph (crop) by Thomas Allen
Article
New Movies·

= Subscribers only.
Sign in here.
Subscribe here.

The Force Awakens criticizes American imperialism while also celebrating the revolutionary spirit that founded this country. When the movie needs to bridge the two points of view, it shifts to aerial combat, a default setting that mirrors the war on terror all too well.”
Still © Lucasfilm
Article
Isn’t It Romantic?·

= Subscribers only.
Sign in here.
Subscribe here.

“He had paid for much of her schooling, something he cannot help but mention, since the aftermath of any failed relationship brings an ungenerous and impossible impulse to claw back one’s misspent resources.”
Illustration by Shonagh Rae
Article
The Trouble with Iowa·

= Subscribers only.
Sign in here.
Subscribe here.

“It seems to defy reason that this anachronistic farm state — a demographic outlier, with no major cities and just 3 million people, nine out of ten of them white — should play such an outsized role in American politics.”
Photograph (detail) © Justin Sullivan/Getty Images
Article
Rule, Britannica·

= Subscribers only.
Sign in here.
Subscribe here.

“This is the strange magic of an arrangement of all the world’s knowledge in alphabetical order: any search for anything passes through things that have nothing in common with it but an initial letter.”
Artwork by Brian Dettmer. Courtesy the artist and P.P.O.W., New York City.

Number of people who attended the World Grits Festival, held in St. George, South Carolina, last spring:

60,000

The brown bears of Greece continued chewing through telephone poles.

In Peru, a 51-year-old activist became the first former sex worker to run for the national legislature. “I’m going to put order,” she said, “in that big brothel which is Congress.”

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

HARPER’S FINEST

Two Christmas Mornings of the Great War

By

Civilization masks us with a screen, from ourselves and from one another, with thin depth of unreality. We habitually live — do we not? — in a world self-created, half established, of false values arbitrarily upheld, largely inspired by misconception, misapprehension, wrong perspective, and defective proportion, misapplication.

Subscribe Today