Secrecy and torture, the twin dark stars of tyranny

I rarely write 'covers' for other authors' commentaries, but today is the exception. I urge you to head over to Harper's and read Scott Horton's splendid essay on the nature of state secrecy and torture: Torture, Secrecy and the Bush Administration. In this speech, which he gave the other day at the NYU School of Law, Horton places the Bush administration's bizarre record of lawlessness, secrecy, and torture in much needed historical context. He describes the struggle in 17th century Britain to do away with the Star Chamber (secret courts) and to enshrine elements of legal due process and openness that the founders of our Republic embraced and defended.

Horton begins by describing the career of John Lilburne, a "firebrand pamphleteer" in England whose two trials, one under the Stuart monarchy and another under Cromwell's Commonwealth, prompted backlashes that led to the establishment of basic personal liberties and legal rights. He then proceeds to consider the government we face today (emphasis mine):

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.

Secrecy was what the Roundheads [English Puritans] found most odious about the Stuart monarchs' justice. Certainly unjust practices accompanied some of our Puritan forefathers to this country; we can't forget the Salem witch trials, for instance. But so too, did a healthy contempt for the abuses practiced by the Stuart monarchs, starting with the notions of torture and secret courts with secret evidence. The contempt was reciprocal of course – they say that King Charles' lip would curl at the very mention of the word “Massachusetts,” and seven of the ten members of the first graduating class of Harvard – the class of 1642 – returned to England to enlist in the Model Army and fight against the King. The practice of secret courts. The use of torture to secure confessions. The receipt of secret evidence. The exclusion of the public from proceedings. The offering of evidence in the form of summaries delivered to the judges, without the defendant being able to confront the evidence or conduct a cross-examination. These practices were the definition of tyrannical injustice to the Puritan fathers and the Founding Fathers. We thought them long banished, indeed, a hundred years and more before our own revolution. And now suddenly here they are again.

Secrecy has reemerged just as torture has made its comeback, being justified on the public stage, by government officials for the first time since the famous gathering at the Inns of Court in 1629 at which the judges declared “upon their and their nation's honor” that torture was not permitted by the common law.

The two fit together, hand in glove: torture and secrecy. Torture and secrecy. Where one is used, the other is indispensable.

Torture is no longer a tool of statecraft. Today it is a tool of criminals, though sometimes of criminals purporting to conduct the affairs of state. Having resorted to these “dark arts,” to quote Dick Cheney, the torturers now have the dilemma faced so frequently by criminals. They seek to cover it up. And so the path flows from torture to secrecy, the twin dark stars of the tyrannical state.

As we can observe in the show trials being conducted now in Guantanamo, under the name of "tribunals", secrecy exists to cloak the crimes committed by the Bush regime. The men on "trial" there can demonstrate that they've been tortured. Therefore the record must show nothing of the sort, even if the records must be lost or doctored, even if the witnesses to their own torture must be silenced or spirited away from inquiring American reporters. The proceedings in the holes and corners of Guantanamo are a direct challenge to the principles established 350 years ago by John Lilburne:

“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.”

All of the most monstrous outrages of the Bush administration tend in the same direction. The revival of torture, the advocacy of secrecy as such, the shattering of due process, the contempt for law that constricts its freedom of action, the refusal to be held accountable for anything...all of these flow down toward the same poisoned future in which Americans will no longer suppose that they possess the inherent rights and liberties won by a generation of pamphleteers, agitators, and trouble-makers at the dawn of the Enlightenment.