Harper's has posted on its web site remarks delivered by Scott Horton on Thursday at New York University School of Law's Conference on Government and Secrecy.[1]  --  That the nature of the period we are living through is regressive is clear from fact that "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."  --  Whatever happens, Horton said, "We have a duty to posterity, and that is to bear witness to these events.  We must document them carefully." ...


By Scott Horton

April 14, 2007


--Remarks delivered at New York University School of Law's Conference on Government and Secrecy, April 12, 2007.

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.

Secrecy was what the Roundheads 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 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.

If we look quickly at the proceedings that held the world's attention down in Gitmo over the last two weeks, we see what the secrecy is all about.

When the Combat Status Review Tribunal process commenced, the Pentagon told us that the proceedings would not be open to the public. Instead, it said, a transcript would be offered up to the public a few days later, giving the Pentagon an opportunity to redact “classified national security” information from the transcripts. Pete Yost of the Associated Press gave me a ring just as this came out and asked: what do you suppose they think is going to require censoring? I said the answer is clear, based on submissions the Department of Justice has made in four or five cases: they will take the position that any evidence of torture must be censored or expunged, because the testimony would disclose the specific torture techniques which have been applied, and that would divulge highly classified national security data. Why do you think the DVDs of the treatment of Jose Padilla, all two dozen copies, mysteriously disappeared? Why, as Colonel Couch recently told the *Wall Street Journal*'s Jess Bravin, did the recording devices inexplicably malfunction whenever torture incidents occurred? Yes. Why indeed. Of course, I was relying not only on what was said and done in Padilla, El-Masri, Arar, and other cases, but also on Terry Gilliam's movie, “Brazil,” in which all of this morally deviant thinking is taken to its logical conclusion. What the Bush Administration has created in Gitmo is “Brazil,” minus, of course, any pretense of humor.

Now we have the first two transcripts, and the results are exactly that. The torture is cut out. The case of al-Nashiri is particularly striking:

"PRESIDENT (of the tribunal): Please describe the methods that were used.

"DETAINEE: (CENSORED) What else do I want to say? (CENSORED) There were doing so many things. What else did they did? (CENSORED) After that another method of torture began. (CENSORED) They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And if I didn't replay what I heard, he used to (CENSORED)."

Now let's consider -- would there be any need to censor the allegations unless they are true? No. Indeed, the fact that they are censored should be taken as an admission. No meaningful effort is made to refute any of the detainee's contentions. No records are spread out showing that he was not tortured. Why might that be?

And the second case for secrecy we see in the trial of David Hicks, which follows a pattern established with the John Walker Lindh case. It came to a plea bargain in the end, and a strong focus on silencing the witness. In particular, he was to be gagged as to everything that was done to him while he was in U.S. custody for a period of one year, which is to say, until the Australian elections are past. The plea bargain, it appears, was negotiated by Susan J. Crawford, a protégée of Vice President Cheney, and Cheney had only six weeks earlier visited Australian Prime Minister John Howard downunder. According to accounts of their meeting published at the time in the Australian press, at the top of Howard's agenda was an urgent plea to bring the Hicks case to a speedy conclusion that would allow him to serve a brief sentence in Australia. Crawford delivered exactly what was requested.

There is a common theme to these cases. Secrecy is not invoked to protect military or legitimate state security confidences. It is invoked for nakedly political reasons, or darker and still more likely, to obscure crimes and avoid the creation of court records which would document them.

On April 27, 1961, John F. Kennedy gave a speech in the Waldorf-Astoria to the American Newspaper Association. “The very word 'secrecy' is repugnant in a free and open society;” Kennedy said “and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it. Even today, there is little value in opposing the threat of a closed society by imitating its arbitrary restrictions. Even today, there is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment. That I do not intend to permit to the extent that it is in my control.”

I believe that the moment -- the day of “official censorship and concealment” -- that Kennedy foresaw is drawing near, if it is not already upon us in America today. The moment has crept upon us by stealth, as a result of decisions taken at the highest level in government. These decisions have been made behind closed doors, with no public discussion -- and indeed with a concerted effort to misdirect the public as to the gravity of the changes in policy which have been undertaken. They have led to a dramatic expansion of Government action without oversight, which is to say on the basis of a decision by the President unchecked by courts and Congress, and to a shrinkage of individual freedom.

We have a duty to posterity, and that is to bear witness to these events. We must document them carefully. We must act to avoid the destruction of valuable evidence -- and recognize, as we have already seen, that it is in the character of those who commit crimes to destroy the evidence of their misdeeds. In this way we lay the path for the justice which will in good time be meted out to those who betrayed a nation's trust. For I believe, like the Puritans, in the certainty that justice will triumph and that wrongdoers will be held to account, though I am not so foolish as to think that this will happen soon. Still, the time is coming, as John Milton wrote,

                        that sun part the clouds which tyrants muster,
                        that good men may enjoy the freedom which they merit,
                        and the bad the curb which they need.