Secrecy, Torture, and the Common Law

[Jefferson23]

By Scott Horton

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 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.

remainder: http://www.harpers.org/archive/2010/05/hbc-90006991

[chill_wind]

1. "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."

There was a time when I thought the all the mass publicity and proceedings in the UK would give new lease on hope that we might begin following a similar demand for justice and disclosure here-- a different trajectory than we've had so far.

I still hope. But not nearly as much.

[Jefferson23]

2. I as well haven't given up all hope, but it's difficult not to. n/t

[chill_wind]

3. .