Why Torture...
In the last
several years Western civilizations have
found themselves in the midst of more catastrophes than they could ever, in their
worst nightmares, have dreamed of. They could never have envisaged that the
history of the new century would encompass the destruction and distortion of
fundamental Anglo-American legal and political constitutional principles in
place since the 17th century.
Habeas
corpus has been abandoned for the outcasts of the new order in both the US and
the UK, secret courts have been created to hear secret evidence, guilt has been
inferred by association, torture and rendition nakedly justified
(in the UK the government's lawyers continue to argue positively for the right
to use the product of both) and vital international conventions consolidated in
the aftermath of the Second World War - the Geneva Convention, the Refugee
Convention, the Torture Convention - have been deliberately avoided or ignored.
It is the
bitterest of ironies that John Lilburne, the most important organizer of the
rights people in the UK and the United States claim and on which all
respective constitutions, written and unwritten, were built, achieved this in
large part as a consequence of his having been himself subjected to torture, to
accusations based on secret evidence and heard by a secret court, to being
shackled and held in extremes of isolation which exposed him nevertheless to
public humiliation and condemnation.
The worst
excesses of the last ten years, which destroyed the certainties of those
hard-won rights, should have sounded loud alarms, not least because of that
precise historical parallel; one key in attempting to hang on to legal and
moral concepts under attack is to remember their origin.
Lilburne,
an intractable young Puritan, with a strong sense of his rights as a freeborn
Englishman and a smattering of law, in 1637 was summoned before the Court of
Star Chamber - a court comprising nothing more than a small committee of the
Privy Council, without a jury, empowered to investigate. Lilburne had recently
been in Holland and was charged, o n the basis of information from an
informant, with sending loosely defined "fatuous and scandalous"
religious books to England. His defence was straightforward: “I am clear I have
sent none.” Thereafter he refused to answer questions based on allegations kept
secret from him as to his association with others suspected of involvement in
the sending of the books: “I think by the law of the land that I may stand upon
my just defence, and that my accusers ought to be brought face to face to
justify what they accuse me of.” For his refusal, he was fined 500 pounds, a
fortune for an apprentice, and was lashed to a cart and whipped thought the
streets of London from Fleet to Westminster.
Lilburne
was locked in a pillory in an unbearable posture (in today’s terminology a
“stress position”), but yet exhorted all who would listen to resist the tyranny
of the bishops, repeating biblical texts to the crowd applicable to the wrongs
done to him and their rights. On being required to incriminate himself: “No man
should be compelled to be his own executioner.” He survived two and a half
years in Fleet prison, gagged and kept in solitary confinement, shackled and
starving. The first act of the Long Parliament in November 1642 was to set him
free, to abolish the Court of Star Chamber and to adopt a resolution that its
sentence was “illegal and against the liberty of the subject, and also bloody,
cruel, wicked, barbarous and tyrannical.”
Lilburne’s
principled and public stance and the extraordinary political movement of which
he was part, the Levellers, produced far more than a brief reaction of
abhorrence to the use of torture and arbitrary imprisonment. By the end of the
17th century, there had crystallized the foundation of the concepts upon which
we draw now, most importantly the concept of inalienable rights that pertain to
the individual and not to the state. The Levellers insisted that the
inalienable rights were possessed by the people and were conferred on them not
by Parliament, but by God; no justification by the state could therefore ever
justify their violation. For the preservation of these and the limitation of
parliamentary power, the Levellers formulated a written constitution; never
adopted in England, in the new world it became a political reality. In both
countries, due process – the legal concept that gives effect to the idea of
fairness – was born from these ideas.
Once
evidence of any country’s willingness to resort to torture is exposed,
reactions of decency and humanity can be invoked without the necessity of legal
explanation. Less likely is any instinctive reaction to evidence in the
destruction of concepts of procedural fairness. Yet, in the imprecision and
breadth of accusations, leading in turn to the banning of books and the
criminalization of ideas and religious thought, and in the wrong committed by
secret courts hearing secret evidence, the lessons of John Lilburne and Star
Chamber have been in the last ten years deliberately abandoned and sustained
battles have still to be fought to reclaim the majority
The
shocking, reckless and ruthless disregard of all of these concepts seen in
recent years is neither new nor unique to the UK or to the US. The
history of regions other than Europe & North America, shows how fragile are
the laws and their applications that we assume protect us when faced with a
government determined to follow a contrary path. Repeatedly, historically, even
nations which have recently emerged from the fires of hell remember the
experience as it relates to themselves, but yet consign others to the same
fate.
Fewer than
ten years after then end of WWII, and only eight years from the UN Declaration
of Human Rights, the first reports of the use of torture by the French against
the Algerians fighting their war of independence began to emerge, with
justifications that today appear very familiar. The first official reports in
1955 admitted some violence had been done to prisoners suspected of being
connected to the FLN, but that this was “not quite torture”; “The water and the
electricity methods, provided they are properly used, are said to produce a
shock which is more psychological than physical and therefore do not constitute
excessive cruelty.”
Sartre
articulated the shock of realizing that torture had reappeared and was being
justified so soon after it had been categorized as an aberration found only
among psychotic and degenerate governments willing to violate all universally
understood and recognized principles of justice: “In 1943 in the Rue Lauriston,
Frenchmen were screaming in agony and pain; all France could hear them. In
those days the outcome of the war was uncertain and they did not want to think
about the future. Only one thing seemed impossible in any circumstances: that
one day men should be made to scream by those acting in their/our name.”
Written by Gareth
Peirce, a British lawyer who represents individuals who have been the subject
of rendition and torture
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