On the eve of the anniversary of the Gunpowder Plot – whose protagonists were tortured – Nick Cohen considers the un-Englishness of that practice:
“Scotland, France and all the countries of western Europe allowed torture, except England, which ignored the Romans and stuck with the Anglo-Saxon common law. Sir Edward Coke, Bodin’s English contemporary, was adamant that “there is no warrant to torture in this land”. He meant in the common law courts. It could be authorised by the monarch or the privy council, and practised under the royal prerogative by the Court of Star Chamber. James I had to sanction the torturing of Guy Fawkes personally. If his interrogators did put him on the rack, they would have done so in the Tower, which held the only rack in England.
So alien was the Star Chamber that its abuses were a cause of the English Civil War. The folk memory of the loathing it aroused survives to this day. If you denounce an arbitrary tribunal as “Star Chamber justice”, at least part of your audience will know what you mean.
In the light of English tradition, the government’s claim that the law lords should allow it to use evidence that foreign torturers may have collected appears outrageous. It is as much an offence to the enlightened opinion of the 17th century as the 21st, and the Lords should throw it out.
If the Lords go against the government, all evidence from, say, Egypt will be inadmissible because the Egyptians may have used torture. The result will be a paradoxical inversion. The authorities will be able to deport a harmless Egyptian cabbie who came to Britain as an economic migrant, for breaking immigration rules. But they won’t be able to send back a member of Egyptian Islamic Jihad as he “may” be tortured on return. If there is evidence from Egypt that he is plotting an attack on the Underground, they won’t be able to use that against him either because it “may” have been collected by torture. In other words, the greater the alleged threat a foreign suspect poses to the country, the harder it will be to deal with him.
In the long run, the way to resolve the paradox is for the EU to do what it does best and use its economic muscle to force humanitarian reform. Egypt, Jordan, Algeria, Morocco and the rest must be told that if they want to trade on advantageous terms, they must meet basic standards.
But by then some of us may be dead. The police and intelligence services say they’re getting frighteningly few leads. What to do about the holy warriors who would once again blow up the Houses of Parliament is the most difficult question of our times. Every possible answer is grim. If we allow the evidence, we will sanction torture, however indirectly, and have blood on our hands. If we don’t, we may let bombers escape and have blood on our hands. Maybe our own blood.”
I think that the Economist got it right, almost three years ago, when it opined:
“Much as one would like to believe that torture never succeeds in extracting vital information, history says otherwise. But, for the democratic West, any such gains would be outweighed by greater harm. The prohibition against torture expresses one of the West’s most powerful taboos—and some taboos (like that against the use of nuclear weapons) are worth preserving even at heavy cost. Though many authoritarian regimes use torture, not one of even these openly admits it. A decision by the United States to employ some forms of torture, no matter how limited the circumstances, would shatter the taboo. The morale of the West in what may be a long war against terrorism would be gravely set back: to stay strong, the liberal democracies need to be certain that they are better than their enemies.
[T]here is a line which democracies cross at their peril: threatening or inflicting actual bodily harm. On one side of that line stand societies sure of their civilised values. That is the side America and its allies must choose.”