The ruling by the House of Lords this week, barring any legal testimony extracted by torture, makes for inspiring reading. It provides a long history of how English common law banned torture for any reason from as far back as Magna Carta. Torture was indeed introduced in the sixteenth and early seventeenth century by the Crown, but was revoked in 1640, which was the year the last torture warrant was issued in Britain. After that, the use of torture was unthinkable in English jurisprudence. Nineteenth century legal historians deemed the practice “totally repugnant to the fundamental principles of English law” and “repugnant to reason, justice and humanity.” In the words of one scholar, writing in 1837,
“Once torture has become acclimatized in a legal system it spreads like an infectious disease. It saves the labor of investigation. It hardens and brutalizes those who have become accustomed to use it.”
This statement was, in the words of Britain’s highest court, “more aptly categorised as a constitutional principle than as a rule of evidence.” There can be no weighing of any evidence procured by torture.
THE INTERNATIONAL CONTEXT: Moreover, in the view of the highest British court, “the international prohibition of torture requires states not merely to refrain from authorising or conniving at torture but also to suppress and discourage the practice of torture and not to condone it.” What does “torture” mean, according to the U.N. Convention to which the United States is a signatory? It means:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession … when such pain or suffering is inflicted at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
Waterboarding is not even close to being regarded as faintly permissible. To do what Charles Krauthammer proposes would require the U.S. withdrawing from the U.N. Torture Convention. But at least Charles is intellectually honest about this. The president merely wants to do this but not be seen to be doing it and to be given a formula to say in public when it comes out. The ban, enforced by treaty, is, however, categorical:
No exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification for torture.”
In the notorious Demjanjuk case, those who advocate torture are regarded as “common enemies of mankind.” In the words of Europe’s Commissioner for Human Rights, “torture is torture whoever does it, judicial proceedings are judicial proceedings, whatever their purpose – the former can never be admissible in the latter.”
A MATTER OF HONOR: There is also another dimension to the bar on torture. That dimension is something called “honor.” In 1628, King Charles I of England had in his hands a man who had assassinated a public official. The king wanted to put the man on the rack to discover whether he had any accomplices. (Recall that Torquemada regarded the rack as less terrifying than “waterboarding.”) Charles asked his own judges if the law permitted such a thing. William Blackstone recalled their response:
“The judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England.”
Honor. That’s the fundamental principle at stake here: the honor of Anglo-American democracy. Lord Hoffmann in his concurring judgment writes:
That word honour, the deep note which Blackstone strikes twice in one sentence, is what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it. When judicial torture was routine all over Europe, its rejection by the common law was a source of national pride … Just as the writ of habeas corpus is not only a special remedy for challenging unlawful detention but also carries significance as a touchstone of English liberty which influences the rest of our law, so the rejection of torture by the common law has a special iconic importance as the touchstone of a humane and civilised legal system. Not only that: the abolition of torture … was achieved as part of the great constitutional struggle and civil war which made the government subject to the law. Its rejection has a constitutional resonance for the English people which cannot be over-estimated.”
And from English common law, through the English civil war, to the birth of America, this tradition is indeed a matter of fundamental honor for Anglo-American civilization. I get emails every day saying I have become a bore on this topic. But I cannot let it go because it is such a central, critical fulcrum on which our entire Anglo-American system of law and freedom and justice rests. It is constitutive of our treasured inheritance of liberty. It dishonors our ancestors to betray this principle now. These are not pieties. They are the most basic of constitutional principles. We must never surrender them.
The Dish 