The Big Ideas of 2013

Why We Torture

What do we do once we know?

Still from "Four days in Guantánamo"

The last several years have found us in the midst of more catastrophes than we could ever, in our worst nightmares, have dreamed of. We 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 our 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 we in this country and the United States claim and on which our 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 (and which we constantly choose to forget or ignore) – 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 this country or to the US. The history of regions other than our own 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 we 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 our name.”

The illustration on the cover my book, Dispatches From the Dark Side, is of Shafiq Rasul, a young Englishman from Tipton in the West Midlands, who within hours of returning from unlawful captivity in Guantanamo Bay understood the need to put on record the reality of imprisonment there. For the next month, with Asif Iqbal and Ruhal Ahmed, he struggled to prepare a report, illustrated by sketches in the absence of any photographs, of what had been done to them. Soon thereafter, the legal challenge his family had initiated when he was first reported to be in Guantanamo (Rasul v. Bush) was decided by the US Supreme Court in favor of Shafiq Rasul. What argument was won? That the prisoners in Guantanamo Bay should have access to legal remedies and to lawyers who could, most importantly of all, for the first time go in and, bit by bit, bring out reports, not just of the physical and mental horrors inflicted by or on behalf of Americans, but of the complicity of this country (at every level) in their unlawful captivity.

We were never meant to know any of this. The still-unanswered question of burning relevance, however, remains: once we know, what do we then do?

Gareth Peirce is a British lawyer who represents individuals who have been the subject of rendition and torture, or held in captivity on the basis of secret evidence. This excerpt is from her new book, Dispatches from the Dark Side: On Torture and the Death of Justice (Verso).

20 comments on the article “Why We Torture”

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Anonymous

Torture is in part a celebration of power. It constitutes a demonstration that those in power are above the law. They, unlike "the lowly" -- you know, regular folks -- are truly free. They, above all others, are immune from accountability.

And that will remain true, until it isn't.

Kratoklastes

In his '1984', Orwell put the answer to the OP's question into the mouth of O'Brien (an undercover member of the Thought Police) who handed Winston Smith to the State's torturers -

"Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power."

O'Brien also said "If you want a picture of the future, imagine a boot stamping on a human face — forever."

This is where we are headed unless we do something about the parasitic vermin who seek to rule (whatever 'Party' they claim to belong to and whatever agenda they claim to be pursuing... for our own good, of course). Given that they ONLY understand violence (they would like nothing better than to have their death squads face an "Army of Gandhi and MLKJr"), the course seems inescapable: either they are exterminated, or we descend back into a Dark Age (albeit with bigscreen TVs).

Anonymous

And yet the words of Orwell should be considered carefully. For by saying that, "One does not establish a dictatorship in order to safeguard a revolution, one makes the revolution in order to establish the dictatorship", he seems to be implying that ALL revolutions are doomed the fail. So, had Orwell he been around today, might he not have undermined the Occupy movement?

aaaaaxxxxx

Any government that will torture, will ENSLAVE. Torture has been thoroughly discredited, ONLY stupid illiterate thugs would torture, and ENSLAVE.

Anonymous

Whether or not it was ever true, there was a time when only "other people" torture. There was a time when we considered ourselves to be the good guys. What happened?

Anonymous

Despite being proud of the Statue of Liberty*, why do the people of the USA continue to turn a blind-eye to Guantanamo Bay and the use of torture/water-boarding?

*Liberty: freedom from captivity, illegal confinement or physical restraint.

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