RadioBeatnik

“When any man is entrusted with the sword for the protection and preservation of the people, if this man shall employ to their destruction that which was put into his hand for their safety, than by the law of that land he becomes an enemy to that people, and deserves the most exemplary and severe punishment.”

- John Cooke, 17th century English lawyer, on the trial of Charles l. From “The Tyrannicide Brief” by Geoffrey Robertson.

We are now engaged in a great public debate on the subject of torture.  Pelosi is locked into an industrial-sized denial orgy with the CIA over how much was told to whom and when, and the finger is currently pointed directly at most-dangerous-former-Vice-President-ever Dick Cheney and former Secretary of State Condaleeza Rice for their role as early adopters and enablers of “enhanced interrogation”.

Stencil graffiti. Former Veep Dick Cheney solicits opinions regarding his job performance.

The United States of America seems to have been a trailblazer on the torture trail, and interrogators acting in our name have dutifully gotten Medieval on the asses of Iraqi prisoners and foreign-born Americans at Abu Ghraib and other “undisclosed locations”, many of whom have ultimately been found innocent of any wrong doing. John McCain reminds us that we hung members of the Japanese military for water boarding prisoners of war at the close of WWll. Yet Cheney snarls, barks and paws the ground, sternly reminding us that as heads of state, he and the rest of the gang are beyond prosecution, i.e., above the law.

“Medieval” is the active word here. By the 17th Century these activities were being seriously questioned. Using history as a mirror, lets reflect upon the nation of England at a critical moment in its past; one which will be seen to have some curious resonances with contemporary events.

In 1649, the Divine Right of Kings – by which monarchs claimed to be appointed by God, and therefore above the law – faced a major legal challenge, its biggest since the Peasants Revolt nearly 300 years earlier.

In the years leading up to it, Charles the First, King of England, Scotland and Ireland, waged a protracted and bloody war against… well, England and Scotland, (the Irish being staunch supporters of the Catholic-leaning king). The English Civil War was fought by Charles to relieve himself of the stifling inconvenience of constitutional monarchy, not to mention the tedious indignity of having to ask Parliament for money. For the English, his wars brought years of appalling death and disaster, and Charles succeeded primarily in making himself profoundly unpopular.

Having failed to accomplish his goal, many thousands of his own subjects dying in the attempt, the Rogue Regent was captured, arrested and put on trial for high treason.  Among the crimes listed against him were making war on his own people and the torture of prisoners of war.

Hmmm…

After an eleven day trial, the monarch was convicted and sentenced to death.  Charles I was beheaded on Tuesday, January 30, 1649, sending an electrifying wake-up call to the tiny, elite minority of tea-baggers holding the reins of power in Seventeenth Century Europe.

The resulting Commonwealth failed in about ten years (Less time than the Beatles career as a performing and recording group). It was followed immediately by the Restoration and the crowning of Charles’ son, Charles II as King of England, Scotland and so forth and so on… The new Charles, much the same as the old Charles, promptly set about evening the score against those who sent his Royal Pop to the block, imprisoning them to await trial.  According to the traditions of the time, nobility convicted for capital crimes were politely and swiftly beheaded, while the class-challenged were hung, drawn and quartered, a truly horrific way to die.  Into the unfortunate latter group fell John Cooke, author of the lead-in quote, England’s first Solicitor General, and prosecutor at Charles trial. We will hear more about John Cooke…

Since the 1600s, conservative historians (as well as many comparatively liberal ones), have furthered the view that the men who convicted the king – the “Regicides” – acted disloyally and unlawfully, and that the trial was unjust. Charles, clearly a self-obsessed, duplicitous and intransigent man, has been presented by Royalist orthodoxy as a Martyr, and was canonized by the Anglican Church upon his son’s taking the throne.

All in all, these events do not significantly erode the perception that those in power control what gets into the history books.

These events are examined in detail in The Tyrannicide Brief (Vintage Books, Pantheon Books – available from Amazon on the Kindle), authored by Geoffrey Robertson, Queen’s Counsel, British lawyer and civil rights advocate. In Robertson’s view, the trial of Charles I was carefully and methodically conducted, and the precedents set, primarily by Cooke, were not only carefully considered and well reasoned, but sound enough to provide the legal foundation for the present day trials of Slobodan Milosevic, General Pinochet, and Saddam Hussein.  Among Cooke’s many contributions to Western Law was the formulation of the crime of Tyranny, “in order to bring to justice any ruler who makes war on law and liberty, or who bears command responsibility for the killing of his own people, or who orders the plunder of innocent civilians and the torture of prisoners of war.”

There’s the “T” word again…

As noted, Bush and Cheney assert claims of immunity from prosecution (referred to as “impunity” by those who tried Charles I), for a list of crimes remarkably similar to those brought against the English regent. Certainly, while in office, they acted as if they were above not only the law, but what many feel to be basic components of Western Law and Civilization, specifically Habeas Corpus.

Also known as “The Great Writ”, the term Habeas Corpus in Latin means “You (shall) have the body” and ultimately provides for legal defense against wrongful imprisonment. The right to know why you are being detained, what the charges are against you, and the right to challenge them in court. Its great strength is in its implicit presumption of the prisoner’s innocence, and in placing the burden of proving the charges upon the prosecution. The basics of what ultimately became Habeas Corpus were laid down eight hundred years ago in the Magna Carta, a contract wrung grudgingly from King John “Lackland” declaring, among other things, that kings most certainly are NOT above the law. Conceived of originally as flowing from a king to his subjects, when the American Colonies formed the early United States it became a principle that all individuals possessed this right intrinsically, sans king. Since then the powers that be in the US have seen fit to abridge, amend and override it, particularly during wartime, (Abraham Lincoln during the Civil War, and most recently Bush & Cheney in the War on Terror).

Ironically, Habeas Corpus came under fire in the Seventeenth Century as well. This central principle of law had to be reasserted by act of Parliament after its circumvention in handling captured Cromwellians after the aforementioned Restoration. These unfortunate former republicans found themselves imprisoned indefinitely and without charge or trial on offshore islands; the premise being – Wow, Deja Vu! – English law therefore did not apply! Deeply outraged by this maneuver, Parliament specifically extended its reach with the Habeas Corpus Act in 1679. Stunningly, Robertson points out that the US Supreme court in 2008 drew upon this specific precedent in restoring due process to prisoners at Guantanamo Bay.

But here the sense of Deja Vu begins to falter. There has yet to be a similar uprising of outraged Americans and American lawyers seeking restoration of the broad range of rights and protections snatched away in the pursuit of the War on Terror. Nor demands of redress for the gross violations of American law and principle in regards to the pursuit of the Iraq War itself, or the treatment of Prisoners of War at Guantanamo, Abu Ghraib, and other, as yet undiscovered places of rendition around the globe. Frighteningly, President Obama is himself reconsidering the holding of prisoners of the War on Terror indefinitely and without trial. Clearly, the United States is slacking some from it’s stated purpose of furthering the cause of Freedom and making the world safe from tyranny.

The Trial of Charles l. Charles is seated at center with his back to us (typical of him). On his immediate right would be John Cooke, Prosecutor and Solicitor General.

Pinging back to the Seventeenth Century, the detailed records that were kept at Charles’ trial indicate that the outcome was far from certain and most if not all of the participants expected at some point to come to terms with the monarch in affirming the English tradition of constitutional monarchy – not precisely the railroading that Royalists have claimed. Ultimately, it was Charles’ stubbornness, his insistence on his own “impunity”, and his refusal to enter a plea that appears to have made the death sentence unavoidable. Charles responded to the charges read against him almost exactly as Milosovec did at his own trial, with a refusal to plea and a disturbing echo of Cheney’s claim of being beyond the jurisdiction of the court as a head of state.

Above the law.

Robertson’s picture of the trials that sent many former republicans to the scaffold under Charles Number Two is very different. Cooke was tried at the same time as two others and sentenced to being hung, drawn and quartered in a matter of hours.

The court blandly ignored his defense, an assertion of the Cab-Rank rule.One of Cooke’s great gifts to modern law, this asserts that attorneys and judges cannot be prosecuted for having taken on any given case. Like a cab driver, goes the reasoning, their duty and responsibility is to provide their services without discrimination to the next person in line who needs them and can pay. This encourages all defendants getting equal treatment and access to legal representation and protects judges and lawyers from after-the-fact retaliation. It did not, however, protect its author.

Earlier in his career, Cooke suggested that this might also include defendants who could NOT pay, being an early spokesman for the idea of lawyers ‘tithing’, or devoting ten percent of their time in the service of the poor, echoing today’s Legal Aid.

Robertson shows Cooke to have been a brilliant lawyer who contributed greatly to the legal system that has come down to us. A commoner, he made his way into the legal profession through his own abilities, no mean accomplishment in the 1600s. During his career, he pressed hard for reform of the labyrinthine English legal system and against the mandatory use of archaic Latin in British courts. He also established the Right to Silence and advocated the abolition of debtor’s prisons. But his pivotal role on the stage of history is in articulating the crime of Tyranny, whereby all men have the right to legal defense and protection against Heads of State Gone Wild.

No one is advocating beheading anyone, the sentence carried out on Charles Numero Uno. We don’t behead people anymore, and it’s a good thing. The idea is that if we lead the way on the path of civilization, less house-broken cultures will eventually follow suit. Similarly, no implication is intended that the English of 1649 never ever engaged in torture; they were, however, supposed to get permission from the courts first, as wire-taps used to be handled before Bush and the War on Terror. Ultimately though, it was Anything Goes when time came for the punishment phase; methods of execution for non-royals convicted of capital crimes were seriously inhumane – look up “Hanged, Drawn and Quartered,” sometime, if you don’t already know all the charming details.

Again we have, at least theoretically, become civilized and humane enough not to authorize this kind of treatment of human beings. Until recently, I felt this included torture. It seems obvious that there are Medieval holdouts around who would like to change all this, but if they truly wish to turn back the clock, they will obviously have to turn it back further than the Seventeenth Century.

This isn’t rocket surgery, folks. It’s a very simple and straightforward question: Are we a nation of laws or not?

If for whatever reason, we opt for “not,” and fail to prosecute the over-privileged for their crimes as zealously as the under-privileged, then we have no defense, no complaint in fact, when our rights are further eroded or simply removed altogether. The men who put Charles l on trial met the challenges they faced and created valued precedents in law to deal with them, and their efforts ultimately cost them their lives. We are not being asked to equal their achievements, however. Thanks to John Cooke and his fellows, all we are called upon to do is to enforce the laws we already have.