Dispatches from the Dark Side. Gareth Peirce

       Preface

      Each of these essays was written, at different times in the last three and a half years, as an urgent SOS—an attempt to set out the details of disturbing contemporary events, not all of which could easily be found in the commentaries of the daily news. Even less accessible in instances such as these, where the facts suggest that the ship of state is sailing towards moral and political catastrophe, are the legal principles that might provide a life raft.

      The last several years have found us in the midst of more such 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 seventeenth 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 originator 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 while exposed 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, on 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 uponmy 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, a fortune for an apprentice, and was lashed to a cart and whipped through the streets of London from Fleet to Westminster. He 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 to 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 though than a brief reaction of abhorrence to the use of torture and arbitrary imprisonment. By the end of the seventeenth century, there had crystallised 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 of the destruction of concepts of procedural