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Secrecy, Torture, and the Common Law

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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.

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