April 17, 2007

 Re:  Remarks On Torture And Secrecy By The Redoubtable Scott

Horton. 

From: Dean Lawrence R. Velvel             

The appended article is another fantastic piece by Scott Horton.  It is comprised of remarks he made at the NYU Law School. Thursday, April 12, 2007 

Torture, Secrecy and the Bush Administration Scott Horton

It’s a great honor for me to share the platform this morning with Dana Priest and Walter Pincus, two journalists who practice at the pinnacle of their craft. I am an avid reader of the Washington Post, which really is at the cutting edge of national security reporting. Now it occasionally happens that I see something in its news pages or an editorial that leaves me unhappy. But when that happens, I pause and remember that this is the paper that brings me Dana Priest and Walter Pincus, and I suddenly feel much more tolerant. Their contribution is profound: America would be less of a democracy without them.

Others here this morning will be expanding on specific issues concerning secrecy and the courts. I want to give a bit of pre-constitutional history, and share with you the story of John Lilburne, an Englishman born in the early 1600s because his story—the story of an agitator who directly challenged the English legal system—has a great deal to tell us about the issues we’re facing today. Lilburne’s story explains why these matters—torture and secrecy—were not issues to the Founding Fathers, and it helps us understand the true nature of a government which, like the current administration, thrives in that matrix of torture and secrecy.

So much of what has happened over the last six years seems a repetition of events drawn from English history, from the turbulent years from the Civil War to the Glorious Revolution - this could be said of the struggle over habeas corpus, which was right at the center of the conflict between Parliament and king, as seen in the Five Knights case of 1627 or the Shipmaster’s tax case of 1637. But the notion of secret legal proceedings, closed courts and the use of secret evidence also characterize that period of history. Before the English Civil War, court proceedings were frequently closed, and one of the principles of fair process introduced in the Commonwealth - it seems to have been an initiative of the solicitor general, John Cooke - was the notion that no court should conduct its hearings behind closed doors, and neither should any evidence be taken which could not be shared with the public and presented to the defendant and the jury.

The key case for this notion involved a man commonly called “Freeborn John,” or John Lilburne. He was a person of little formal education who became a firebrand pamphleteer among the Puritans in the years of the Civil War. He had republican sentiments, but more to the point he was a sharp critic of the king’s justice - writing constantly of the aspects which were, well, unjust. He was particularly outraged by the use of the king’s courts to persecute dissenters, as the Anglicans called them – though at the time this would be a changing blend of Puritans, Calvinists, Baptists and Quakers; not to mention the “terrorists” of the day, the Catholics. Lilburne had been convicted in the Star Chamber in 1638 on a charge of importation and dissemination of unregistered religious tracts. He wrote a compelling account of his treatment – he had been imprisoned for refusing to answer questions and then flogged, pilloried and gagged – but he also described the use of coercive interrogation techniques to extract a confession, the denial of rights of confrontation, the fact that his judges were all political figures placed there to do their king’s bidding – the Star Chamber, you see, was to Lilburne’s age what the Military Commission is to ours.

His account was an instant bestseller and provided much of the impetus for the abolition of the Star Chamber by the Long Parliament in 1641. As Uncle Tom’s Cabin was to abolition, Liburne’s book was to habeas corpus and the Star Chamber. Lilburne served with distinction as an officer during the Civil War, and afterwards his advocacy of Republican virtues caused Oliver Cromwell a bit of discomfort, and at length Cromwell decided to silence Lilburne by charging him with treason. The trial convened in October 1649, which is to say just months after the second Civil War had been successfully concluded for the Parliamentary forces.

This was in effect the second significant trial for the Commonwealth after the trial of King Charles himself in January. Lilburne was a popular figure in London and was well aware of that fact. When the court proceedings commenced behind closed doors in the Painted Chamber of Westminster, Lilburne opened his answer to the charges read in court with these famous words: “The first fundamental liberty of an Englishman is that all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred.” Lilburne was raising a direct challenge to the reputation of the Commonwealth courts – asking whether one of the most abusive of the practices of justice under the Stuart monarchs would be continued. The court fully understood this and directed that the doors be opened, in order that “all the world may know with what candour and justice the court does proceed against you.”

In the balance of that remarkable case, Lilburne established a number of other principles. The prisoner in the dock was to be treated with dignity and respect, not dragged before the court in manacles and an orange jumpsuit. There were to be no ex parte communications between the counsel and the court. He was to have a right to confront all evidence against him (that is, there could be no secret evidence), and the public also was to be allowed to hear it, to form its own opinion of the quality of justice dispensed by the court. He was guaranteed the right of counsel, and for the first time, counsel were permitted to participate in the presentation of evidence for the defense as well.

The fairness of the proceedings had its limit. The judge charged the jury that they must convict, saying “never was the like treason hatched in England.” But the vigor of Lilburne’s defense was impressive and the jury returned a verdict of acquittal. (To this day, some attribute the acquittal to Judge Keble’s refusal of the jurors’ request of a “butt of sack,” which is to say, a very large quantity of fortified wine, as a pre-deliberation refreshment).

The Lilburne case sums up the most significant of what may be called the “Commonwealth reforms” of criminal procedure – one of the few legacies of the revolution to survive the restoration of the monarchy.

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http://velvelonnationalaffairs.com/

Lawrence R. Velvel is the Dean of the Massachusetts School of Law, which educates the working class, mid-life people, minorities and immigrants. He is the editor of a journal called The Long Term View, hosts an hour-long TV book show called Books of Our Time, which appears in the New England and Mid-Atlantic states on Comcast's CN8 and is streamed on the internet, and hosts a radio program called What The Media Doesn’t Tell You.  The radio program, which is carried on World Radio Network and is streamed on the internet, discusses important matters which the media doesn’t disclose (or insufficiently discloses) and the reasons for the nondisclosure.

Velvel wrote a 1970 book on the constitutionality of the Viet Nam War and civil disobedience, and a recent quartet called Thine Alabaster Cities Gleam, comprised of:  Misfit In America; Trail of Tears; The Hopes and Fears of Future Years: Loss and Creation; and The Hopes and Fears of Future Years: Defeat and Victory.

Velvel blogs at velvelonnationalaffairs.com. His 2004 and 2005 posts have been published in Blogs From the Liberal Standpoint: 2004-2005.

 

 

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