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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.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
For the past three years my dosimeter had sat silently on a narrow shelf just inside the door of a house in Tokyo, upticking its final digit every twenty-four hours by one or two, the increase never failing — for radiation is the ruthless companion of time. Wherever we are, radiation finds and damages us, at best imperceptibly. During those three years, my American neighbors had lost sight of the accident at Fukushima. In March 2011, a tsunami had killed hundreds, or thousands; yes, they remembered that. Several also recollected the earthquake that caused it, but as for the hydrogen explosion and containment breach at Nuclear Plant No. 1, that must have been fixed by now — for its effluents no longer shone forth from our national news. Meanwhile, my dosimeter increased its figure, one or two digits per day, more or less as it would have in San Francisco — well, a trifle more, actually. And in Tokyo, as in San Francisco, people went about their business, except on Friday nights, when the stretch between the Kasumigaseki and Kokkai-Gijido-mae subway stations — half a dozen blocks of sidewalk, which commenced at an antinuclear tent that had already been on this spot for more than 900 days and ended at the prime minister’s lair — became a dim and feeble carnival of pamphleteers and Fukushima refugees peddling handicrafts.
One Friday evening, the refugees’ half of the sidewalk was demarcated by police barriers, and a line of officers slouched at ease in the street, some with yellow bullhorns hanging from their necks. At the very end of the street, where the National Diet glowed white and strange behind other buildings, a policeman set up a microphone, then deployed a small video camera in the direction of the muscular young people in drums against fascists jackets who now, at six-thirty sharp, began chanting: “We don’t need nuclear energy! Stop nuclear power plants! Stop them, stop them, stop them! No restart! No restart!” The police assumed a stiffer stance; the drumming and chanting were almost uncomfortably loud. Commuters hurried past along the open space between the police and the protesters, staring straight ahead, covering their ears. Finally, a fellow in a shabby sweater appeared, and murmured along with the chants as he rounded the corner. He was the only one who seemed to sympathize; few others reacted at all.
Number of U.S. congressional districts in which trade with China has produced more jobs than it has cost:
Young bilingual children who learned one language first are likelier than monolingual children and bilingual children who learned languages simultaneously to say that a dog adopted by owls will hoot.
An Oklahoma legislative committee voted to defund Advanced Placement U.S. History courses, accusing the curriculum of portraying the United States as “a nation of oppressors and exploiters.”
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“He could be one of a million beach-bound, black-socked Florida retirees, not the man who, by some odd happenstance of life, possesses the brain of Albert Einstein — literally cut it out of the dead scientist's head.”