TORTURE AND THE FIFTH AMENDMENT -- Torture should be off the table.

[JDPriestly]

The Fifth Amendment to the United States Constitution states as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; NOR SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

What is the purpose of torture other than to compel a witness to testify against himself? I can think of none. Once a prisoner refuses to cooperate and answer questions, he or she must be treated as a co-conspirator, it would seem to me. At that point, he or she has chosen sides, so to speak. He or she cannot be compelled to incriminate him- or herself. Thus, torture or even extreme interrogation techniques are unconstitutional.

Note that the relevant part of the Fifth Amendment applies to "any person." The right to a Grand Jury, presentment or indictment allows for military tribunals in actual service in time of War or public danger but only for "cases arising in the land or naval forces, or in the Militia, WHEN IN ACTUAL SERVICE. The protections against double jeopardy, self incrimination and takings without compensation are not subject to the qualifications of the first section. These latter protections apply to "any person" at any time -- citizen of the U.S. or not -- in the U.S. or not. The Fifth Amendment is pretty easy to read, it seems to me, and very, very clear on this point. No ifs, ands, or buts.

So I submit that the Fifth Amendment prohibits torture or extreme interrogation techniques used against any person, in or out of the military, citizen or not, from the get-go. Unless of course these "techniques" are just being used for the purpose of sadistic pleasure. (And that is a whole new ballgame.)

A candidate for attorney general who does not immediately respond to a question about torture by stating that he or she will ensure that all interrogation techniques used by any person under his authority will comply with the Fifth Amendment should be rejected immediately. The standard answer should be: As Attorney General, I will insure that all policies of the Department of Justice comply with the Constitution and, with regard to interrogation, specifically that they comply in every respect with the Fifth Amendment prohibition on compelling self-incrimination.

There is no other acceptable answer. There are no compromises. The Fifth Amendment does not just apply to Congress. It applies to the office of the president.

[Devlzown]

1. Cases are thrown out of court all the time

because of coerced confessions. I don't see why a case involving torture should be seen differently.

[JDPriestly]

2. The shameful thing is that our courts interpret the Fifth Amendment

to exclude evidence. I seriously doubt that the Founding Fathers would approve of the current judicial view of the Fifth Amendment. This Amendment was intended to prevent torture. The Founding Fathers knew what torture was. This Amendment was not just intended to prevent courts from allowing the use of the "fruits" of torture in court. It was intended to prohibit torture. I cannot say it often enough. The Supreme Courts of the past have so watered down our rights that they have made a mockery of the courage and resolve of the men who risked their lives and fortunes to give us our country. We need to have a national renewal. We need to remind D.C. that the Constitution is not to be interpreted in ways that compromise and diminish our rights.

This protection against compelled self-incrimination is one of the most important of our rights. This right has been compromised. And now we see the results. Once the government can torture -- anyone -- there is no democracy. Torture makes followers of us all. It terrifies us into obedience. Torture is the tool of terrorists, not of democratic governments. With this step into torture, Bush has destroyed the Constitution and the country. All his other crimes are nothing compared to this one.

[Indy Lurker]

3. not a criminal case

NOR SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF.

If there isn't a criminal case, this portion of the 5th doesn't apply.


Their house of cards is build upon the notion that someone can be detained and "questioned" under the due process of law (which pertains to national security), without presenting a criminal case.



Where I see an issue is in the detention itself.


the 4th amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[SlingBlade]

4. Little Help here Guys ?

Guys, I’m not sure where to go here when I have a general question.
But this below is the problem Im having in our local forum.
I’m not sure how to reply. Can someone give me advice.
This is from our resident re-puke:
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Ok, first stop with the illogically constructed siligisms... the 5th Amendment to the Constitution only applies where US Law is applicable. The only places US Law is in force is the United States of America and its respective territories. Since these folks were NOT being held in Camp Guat and they WERE being held at "Black Sites" outside of the domain of the United States... they are not protected by this Amendment. Again, read the article you cited. PERIOD!

Secondly, Fatcat, no one in the articles you are citing even mentions the Geneva Conventions which enforce rules of conduct surrounding soldiers, armies and States at War. To which terrorists are NONE of those entities and NOT SIGNATORIES to this Convention and while they may have declared War on the United States we are only obligated to follow this Convention with those that have signed it.

I cite the treatment of US Prisoners of War Held during the Vietnam War. Ask John McCain if he was treated to the standard of the Geneva Convention. He wasn't FatCat. And why was that?:

Because the New Comunist Government of North Vietnam was not a SIGNATORY.

Really, FatCat, your ignorance of International Law revolving around armed conflict is simply astounding. Your ignorance of history even more confounding.

You ignored the obvious and very simple remedies under International Law that I suggested earlier in this thread... The Hague Conventions... that is where these legal questions will be played out.

While there is no specific Hague Convention regarding "Rendition" I believe that it is high time to suggest conviening one to create this New Set of International Laws regarding the rights of non-signatory combatants at war with recognized states.
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What do you guys think ?

[Celebration]

5. ummmm

That certainly holds no water with me. Some things are right, and some things are wrong. Torture is wrong. There is no justification for it at any time. We need to be a country of ideals----not trying to get around laws which are based on ethics because of legalisms or wiggling out of those ethical considerations. Do we want to be a shining example for the rest of the world? Or do we want to be a shithole?

I vote for the shining example. I'll let other people argue the legalisms. I have a motto "Do the right thing." And you know what? Others tend to follow.

[mac2]

7. Wrong..wrong...wrong you bullies! It's about fear mongering.

[wogget]

6. I'm not a lawyer, but neither is your cheeto eating friend.

Just because the US deals with entities that may not be signatories to certain treaties, that doesn't mean the US is therefore no longer bound by those treaties. Think of the foolishness that would result if that were the case.

The reason North Vietnamese Tortured was because they thought it would help them get what they wanted, and they were too morally bankrupt to see that it is unacceptable behavior.

The same thing can be said of the Bush Administration.

[mac2]

8. Agree.

[nacdemocrat18]

9. This whole thing is stupid

I dont understand why in an effort to preserve America, we are ignoring our sacred values