Torture and the Constitution

[Thom Little]

Does the Constitution permit the use of "waterboarding," or simulated drowning, to extract information from people detained by the government? To most Americans, the very question may sound ludicrous. Waterboarding, after all, has been recognized as a torture technique since the time of Torquemada and the Spanish Inquisition. U.S. soldiers who were caught using it on enemy insurgents in the Philippines, in 1901, or the Vietnam War, in 1968, were prosecuted. When suffocation by water was used by foreign governments, such as the Augusto Pinochet dictatorship in Chile, the State Department didn't hesitate to call it torture.

Yet the Bush administration sees it otherwise. Not only have senior officials denied that CIA interrogation techniques, which are known to include waterboarding, constitute torture, but administration lawyers argue that the practice doesn't necessarily violate the lesser international legal standard of "cruel, inhuman and degrading treatment." In ratifying the Convention Against Torture and Other Cruel Inhuman and Degrading Treatment in 1994, the Senate defined "cruel, inhuman and degrading" as any practice that would violate the Fifth, Eighth or 14th amendments. Secretary of State Condoleezza Rice pledged during her tour of Europe last week that administration policy was to prohibit all U.S. personnel from breaking that standard, presumably including those who staff secret CIA prisons. Since the administration continues to maintain that it is not legally bound by the constitutional test outside the United States, Sen. John McCain (R-Ariz.) is pressing legislation that would make that purported policy a law.

What Ms. Rice's statements concealed is that administration lawyers have concluded that waterboarding and other CIA pressure methods don't necessarily violate the Constitution. Case law, they say, doesn't offer a clear guide to what actions represent a clear breach. The standard, they say, is flexible. In the case of a terrorist who may have information that could save thousands of lives, goes the administration reasoning, extreme measures might be acceptable. That's why, when he was asked about waterboarding and a series of other abusive acts during his confirmation hearing earlier this year, Attorney General Alberto R. Gonzales testified that "some might . . . be permissible in certain circumstances."

Europeans and Americans who interpreted Ms. Rice's statements last week as an assurance that the CIA will no longer use waterboarding, prolonged shackling or induced hypothermia in its secret prisons were misled. Administration officials tell us there has been no decision to abandon those practices. Similarly, those who have hoped that the McCain amendment would end CIA abuses, as we have, must lower their expectations. The creation of a legal standard, while essential, probably will have to be followed by an effort to compel the administration to respect it, through further legislation or court action.


http://www.washingtonpost.com/wp-dyn/content/article/2005/12/10/AR2005121000934.html

[NanceGreggs]

1. If I may ...

... mix two of the current Repub talking points: The idea that Americans are even discussing the use of TORTURE is proof positve that INTELLIGENT DESIGN is absent in the current Administration and its supporters.

[Demeter]

2. A Severe Slapdown of BushCo By Washington Post

Don't let this die---it must be heard and read across the nation!

[pberq]

3. Kick!

More from the article:

"Interpreting the Constitution as permitting waterboarding in secret prisons is, to most experts outside the administration, legally outrageous and politically untenable. It means that the Bush administration accepts, in principle, that the FBI may use waterboarding, painful stress positions, forced nudity and other methods on Americans, in American prisons, "in certain circumstances." That's why the Justice Department has classified its memos on the subject and kept its conclusions secret. That's why President Bush and Vice President Cheney have worked so hard to stop the McCain amendment, which would pave the way for legal challenges to their interpretation. They want to give themselves the authority to commit human rights abuses without having to explain or justify themselves to the public, the world -- or an impartial court."

[kilo]

4. Geneva convention doesn't protect "terrorists" either

I got into a great discussion of whether or not the geneva convention or the constitution protects "terrorists" (and by that I mean "enemy combatants that do not wear uniforms or take measures to disquise themselves as non-combatants").

We concluded that the Geneva Convention would not protect someone who fell into that group because they had violated the Geneva convention when they tried to get the enemy combatants to confuse them with non-combatants.

We also concluded that the US Constitution would not protect someone who fell into that group as long as you did not consider the lesser things like forced nudity, sleep deprevation, and open handed hitting to constitute "cruel and unusual" (8th amendment), and it could be established that their rights to liberty were taken away in due process (14th amendment) but if the "terrorist" was not a US citizen, then you could not look to the constitution for protection.

The 5th amendment of the constitution did not protect someone who fell into that group because this is "...in time of War...", as declared by the congress.

We did however find a provision in the Uniform Code of Military Justice (UCMJ) that mentioned that it was a violation to do anything to a prisoner more extreme than what would be required to insure their appearance at trial, but could be punished slightly for disciplinary infractions.

[suigeneris]

5. Hmmm. 99% horse pucky. nt

[rexcat]

6. It would seem that the * administration...

has made torture an American value. Since it appears that Federal agencies such as the FBI and CIA are allowed to torture prisoners in secret prisons we as a nation condone torture. This is truly a sad commentary.