Blog
Judiciary and terrorism - human rights v national security
15th February 2010
The recent ruling involving Binyam Mohamed, which saw the foreign secretary, David Miliband, losting an Appeal Court bid to stop the disclosure of secret information relating to the alleged torture of a UK resident, is of interest both to those studying the AS Unit Judiciary topic and also to those studying A2 Unit 4 Global Issues and the ‘Terrorism and Counter –Terrorism’ topic. The case touches on the ever relevant Human rights v National Security debate and the wider issue of torture.
The BBC website gives details and analysis of the case: Binyam Mohamed torture appeal lost by UK government Profile: Binyam Mohamed Binyam case reveals dark moral path Ban on ‘torture documents’ lifted
UK loses appeal: Here the British Foreign Secretary, David Miliband talks to the BBC World Services’ News Hour about the legal ruling which has forced the UK government to release documents containing details of the alleged torture of a former UK resident. For the interview click here.
In today’s ‘liberal’ Independent Bruce Anderson argues, in an interesting and polemic article that the Master of the Rolls has shown no understanding beyond courtroom niceties: ‘We not only have a right to use torture. We have a duty’: He writes: “Men cannot live like angels. However repugnant we may find torture, there are worde horrors, such as the nuclear devastation of central London’ killing hundreds of thousands of people and inflicting irreparable damage on mankind’s cultural heritage..”
Before 9/11, in front of some serious lawyers, I once argued that if there were a ticking bomb, the government would not only have a right to use torture. It would have a duty to use torture. Up sprang Sydney Kentridge, one of the great liberals of our age and a fearless defender of unpopular causes, from Nelson Mandela in the old South Africa to fox-hunting in modern Britain. I prepared to receive incoming fire.
It came, in the form of a devilish intellectual challenge. “Let’s take your hypothesis a bit further. We have captured a terrorist, but he is a hardened character. We cannot be certain that he will crack in time. We have also captured his wife and children.”
After much agonising, I have come to the conclusion that there is only one answer to Sydney’s question. Torture the wife and children. It is a disgusting idea. It is almost a tragedy that we even have to discuss it, let alone think of acting upon it. But there is nothing to be gained from refusing to face facts, in the way that the Master of the Rolls, Lord Neuburger, did last week.