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Sun 15 Dec, 2002 02:33 pm
I don't know what is the US equivalent of this UK Act of Parliament. Because there is an unwritten Constitution in the United Kingdom, based on Common Law, Amendments/Addenda to this Common Law are enacted by Parliament when necessary. Just as Amendments to the US Constitution are enacted to keep up to date on the Rights of the People.
I am given to understand that Professor (of law at Harvard) Alan Dershowitz, one of America's most distinguished advocates of civil liberties, has reached the conclusion the Judicial Torture is NOT prohibited by the US Constitution. He argues that the Fifth Amendment, which prohibits self-incrimination, only means that statements obtained by torture could not be introduced as evidence against the tortured defendant. He argues that the Eighth Amendment, which prohibits "cruel and unusual punishment", is not violated by torture either: it applies only to punishment AFTER an individual has been convicted.
It does seem amazing that anyone should consider whether or not the US Constitution is compatible or would excuse/endorse torture. Yet this is the situation in which the US currently finds itself. The Al-Quaida Network, having destroyed the WTC, now seem poised to destroy the legal safeguards, which are thought to be essential to America.
Let me give a couple of examples.
A CIA Officer once said: "In a sense we use torture anyway. When we arrest a foreign national, we will hand him over to his Government - say Egypt. That country's police will arrest the suspects wife.children/parents/relations, put them at the other end of the same cell, produce a couple of pitbulls and say, 'talk or we let dogs have a go at your relatives' - it usually works".
Zaccaria Moussaoui, a foreign national was arrested in connection with the 9/11 atrocity. His attitude has been: "Screw you - I know my rights, there's nothing you can do to me" A FBI Agent said, " That's how they all are. If we had discovered something incriminating on Moussaoiu's computer and discovered evidence that he was planning the 9/11 bombing, how could we have found out details of the planned atrocity, given his "Screw you" answer. Would we have used torture?" A moral and legal dilemma. But say the terrorist is a US National and he cannot be broken to confess within the parameters of the Constituion, what do the Law Enforcement Agencies do?
Apparently there are US lawyers who now advocate the introduction of "Torture Warrants". Oh Dear, what a muddle that will be, trying to get a warrant signed by a liberal judge.
But hold it! What happens when an innocent gets arrested and "put to the question" as Tomas Torquemada might have said?
How do we safeguard our citizens' and non-citizens' in such a scenario?
The United States has a reputation for going to law and not all lawyers are examples of probity.
The whole notion is so reprehensible that I'm having emotional difficulties in formulating a cogent response here.
I had not heard of Dershowitz's opinion on the matter of judicial torture On the face of it, his reasoning seems sound enough. Torture as an information-gathering tool has always been used by the Federal law-enforcement agencies against foreign nationals, no matter how much they might wish to deny it. They don't call it that, of course. They call it hostile interrogation or some such euphemism.The Fifth Amendment against self-incrimination means only that no one can be forced to testify against oneself. And so, information gathered by unorthodox means cannot be entered in evidence. The Constitution, however, is mute on what methods may be used to gather information.
Likewise, the ban on "cruel and unusual punishment" would not apply here inasmuch as interrogation is not punishment.
But there are other prospcriptions against inhumane behavior, not specifically covered in the Constutution. Every state has laws which protect persons against police brutality. A person in custody has rights which, while not necessarily ennumerated in Constitutional law, are generally accepted as inalienable. Article IX in the Bill of Rights (Or the Ninth Amendment, as it is generally known) covers a multitude of these common law precepts by simply stating, "The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Dershowitz has stated his points and he may be 100% correct on them but there are other issues besides just our own Consitution. The US has also signed on to thousands of International treaties. Some of those cover issues like torture and carry the weight of law even if they aren't writen into our own Constitution. While it could be done while remaining within US law I doubt it could be done within the confines of International Law.
But, as MA expressed, there are very few that would find torture acceptable within the US and there aren't any politicans that are going to stick their necks out far enough to propose that this is a good route to go.
Quoting from "The Cambridge Chronicle" (Jenny Attiyeh / Correspondent
Wednesday, December 4, 2002)
"In typically provocative form, he suggests that - were we an amoral country - we could take specific steps to help us win the war against terror - such as the use of torture. We could also control the media, restrict the movements of U.S. citizens and immigrants alike, and resort to targeted assassinations and preemptive attacks. Surprisingly, many of these proposals have already been adopted, on the quiet, he said. For example, we ship out suspects to torture-friendly allies; we detain Muslims; we shoot down terrorist ringleaders with missiles."
Alan Dershowitz - Harvard's intellectual terror
Er - why are you assuming torture is not being used?
I would have thought, for instance, that camp x-ray is a form of at least psychological torture in and of itself, in the way it is run..... and that is the intent - to break down people's sense of themselves and to disorient and intimidate them. I have no evidence - but I would have thought it naive to assume that more direct forms of coercion are not being used.
Do not police departments the world over use physical threat and sometimes violence? I certainly have evidence that Australian ones do - or did.... I no longer have the sort of connections that would allow me to support that, but I see little real evidence for change in these things....
Of course, it is very significant to suggest that constitution/laws do not outlaw torture in your country - and Fishin' rightly says that various treaties both our countries are signatories to do outlaw it - as would our laws, I would also have assumed. However, I know how hard it is for people to get convictions against the police for assault and brutality in my country - judges preferring to believe the most thread-bare and internally inconsistent stories from police.
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