PM Tony Abbott has saved his bacon for the moment with a War on Terror. Can torture be far behind? A-G George (Soapy) Brandis will come at anything before he goes up to the High Court as a reward for gross stupidity. This from EVAN WHITTON’S Treatise on Torture ( Justinian 26 January 2005 ).
Now that US President George W. Bush has made torture a popular indoor sport again, lawyers will be recalling with a chuckle that 13th century European judges absurdly went for the truth and resorted to torture to get it. English judges sensibly went for the money, and resorted to extortion to get it.
Writing of European courts, Yale Professor John Langbein noted in The Origins of Adversary Criminal Trial (Oxford, 2004): “In case after case, the true culprit was ultimately discovered after the innocent person had confessed under torture and been convicted and executed.”
Torture may be useless for finding the truth, but it was fabulous for English hypocrisy and ethnocentrism (Wogs begin at Calais). British justice was largely a criminal enterprise, but woggish torture enabled the English to cultivate that air of effortless superiority, which is the major subject in the Eton/Oxbridge curriculum.
Professor Langbein said that from 1534, when Henry VIII invented his own little church: “… disdain for Continental criminal procedure became enmeshed in English hostility to the leading Continental regimes – the papacy, the French, and the Spaniards … English writers from [Sir John] Fortescue [1394-1476], to Sir Thomas Smith [1513-77], to Blackstone [1723-80] extolled the superiority of England’s torture-free procedure.”
Well, not quite torture-free. Law professor James Elkins, of the University of West Virginia, has noted the adversary system’s “philosophy of cruelty” and trial lawyers’ “professional malevolence”, i.e. their mental torture of witnesses, not least girls and child victims of sex crimes. That system began in Fortescue’s time; Smith observed cross-examination; and Blackstone, the first legal academic, was a notorious liar.
George Bush appears to enjoy an absolutely first rate 13th century mind …
Prussia abolished torture in 1754, Italy in 1786, and France in 1789. After the Battle of Chicken Marengo (Saturday 14 June 1800), Bonaparte rushed back to Paris and initiated the further reforms, which at last made the European system quite effective in delivering truth and justice.
Nonetheless, common lawyers still profess contempt for the European system, rather as if they haven’t read the newspapers for a couple of centuries.
Even Holy Russia abolished torture in 1801, but George Bush appears to enjoy an absolutely first rate 13th century mind: torture of Australian citizens and others can be tracked to a memo by his quaint legal adviser, Alberto (Seedy) Gonzales, on January 25, 2002: “… the war against terrorism is a new kind of war … this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions [against torture].”
(Seedy was Bush’s legal adviser when he was Governor of Texas (1994-2000) and executed 152 persons, at least six of them probably innocent. )
A truckload of academic lawyers said Seedy was naughty to encourage torture, but that seems disingenuous: from Blackstone on, academics have taught lawyers how to torture witnesses, and must know they are paid to subvert law and justice to get clients what they want.
Recent events have added to the general gaiety:
• A soldier, Charles Graner, got 10 years for torture.
• Bush made Congressional leaders bow to his demand that legislation explicitly banning torture be dropped.
• Bush rewarded Gonzales, architect of torture, with a job as America’s first law officer, and is expected to give him a seat on the Supreme Court when Chief Humpty W. Hubbs Rehnquist, full of years (80) and odium, makes a graceful exit. [In fact, Seedy’s stupidity became too much: he had to resign as A-G in 2007.]
Imperial Washington thus seems to be cultivating a taste for irony and/or hypocrisy that even England might envy. Can Australia be far behind?
