The Legal Dilemma of Torture
The most recent chapter in the dark saga of the United States torture debate is a Senate report that sheds additional light on the nature and extent of interrogation techniques used by the Central Intelligence Agency. While there must be a discussion about the veracity of the report itself, for now that debate must yield to the far more important discussion of clarifying the U.S. national stance on the practice of torture.
To blame the divided stance of the U.S. populace on torture on political partisanship alone is myopic. A survey of U.S. history, legal precedent, and political philosophy suggests that the question of torture is one of the most enduring moral dilemmas in the nation.
The discussion begins with the clearer, yet more uncomfortable, question of U.S. obligations under international law. It is plainly clear that the conduct of CIA officers marks a clear violation of U.S. international commitments. The Universal Declaration of Human Rights adopted by the United Nations following the Second World War served as the foundation for many of the international covenants on human rights later passed by UN. In particular, Article 5 of the UDHR marked the international community’s first attempt at documenting its desire to protect against cruel and inhumane punishment sponsored by states. Article 5 of the UDHR plainly reads, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
To fully grasp the irony of U.S. violation of Article 5, one must note that First Lady Eleanor Roosevelt chaired the committee to develop the UDHR. At the time, the First Lady was a vehement advocate for anti-lynching laws in the American South, and spent a considerable amount of effort to persuade President Franklin D. Roosevelt to join the opposition because she found the practice of lynching an indefensible form of torture. President Roosevelt’s fear of losing his coalition of Southern Democrats prevented him from taking a firm position on the matter. However, Eleanor Roosevelt’s indelible passion in designing the Declaration of Human Rights was aimed as much at reminding America of its own moral ideals as it was at shaping the moral ideals of the international community.
Each international convention includes its own prescribed standards, definition of torture, and guidelines as to who is considered a subject under the treaty. For example, the Geneva Convention extends the ban on torture to prisoners of war and does not provide the same treatment to non-state combatants — who are in violation of the laws and customs of war themselves. The argument that the CIA’s actions did not mark a clear violation of the Geneva Convention has some merit, but evidence from the torture memos elicits a clear and conscious effort on the part of executive branch officials to avoid legal culpability by teetering dangerously close to the edges of legality. This fact alone should give American citizens pause.
Yet the far more important question concerns the scope of culpability under the U.S. constitution and its governing laws. Despite the conventional narrative, the question proves to be far more difficult to answer.
Records from the Constitutional Convention of 1878 indicate trepidations on the part of some representatives that the U.S. Constitution had almost remained silent on the topic of torture. The cause of this worry was the perpetual state of confusion at the time as to the Constitution’s endorsement of a specific legal philosophy. Was the U.S. Constitution to follow the civil law, then practiced in many jurisdictions such as Spain and France, with its Roman roots and influenced by the common Roman practice of torture? Or was it to follow the English common law, which in principal — although not in practice — prohibited the use of torture?
In his autobiography, Thomas Jefferson stated that he found Louis XVI’s abolition of torture a great improvement in the condition of the state. Jefferson’s affinity for the works of Cesare Beccaria, the Italian philosopher of criminal law, influenced his treatise on Crime and Punishment, which unabashedly condemned the use of torture and capital punishment. Yet Jefferson’s view failed to influence many of the founding fathers, and the language of the Bill of Rights remained unclear with respect to the use of both measures — the term “torture” never expressly appearing in the text.
Similarly, Patrick Henry of Virginia, supported by George Mason, intended to bring the U.S. Bill of Rights in line with the Virginian Bill of Rights, which prohibited the imposition of “cruel and unusual punishment.” However, Mason’s assertion that the Fifth Amendment’s guarantee against self-incrimination was adequate protection against torture suggests that this concern might have been limited to the practice of torture as it pertains to the criminal procedure and not as a tool of warfare.
During the 1776 Battle of the Cedars between the American and British forces, a number of American soldiers captured by British commanders were tortured, tomahawked, and scalped. George Washington subsequently penned a letter to John Hancock in which he called for retaliation in the form of torture or capital punishment, no matter how “abhorrent and disagreeable to our natures” those practices may be.
Further, Justice Sandra Day O’Connor’s opinion in Whitley v. Albers and Justice Byron White’s decision in Ingraham v. Wright both limited the prohibition of torture to instances of criminal punishment. Both decisions were penned long before the understandable passion surrounding American involvement in Middle East had effectively drawn the ideological line separating the two opposing sides. Both decisions refused to expand the limits of the prohibition of torture beyond instances of criminal punishment. Judicial relief against cruel and unusual punishment therefore has mostly been invoked and treated in the background of guidelines set forward in the Fifth Amendment and most commonly used to assess the constitutionality of criminal sentences such as three-strike laws, death penalty, and other parochial criminal sentencing laws. Moreover, Justice O’Connor stated in Whitley v. Albers that every Eighth Amendment scrutiny of the executive branches’ treatment of prisoners must be balanced against “the government interest at hand” and only rebuked when showing “unnecessary and wanton” behavior.
The disinclination to interpret the Eighth Amendment as imposing a total bar to the practice of torture is not a separation from the original intent behind the amendment, but rather an extension of the implicit disagreement between the founding fathers on the topic of torture. Therefore, it is not wholly baseless to claim that the ambiguous history behind the enactment of the Eighth Amendment and its legal precedents do not provide us with enough ground to extend the prohibition of torture to the much contentious ticking time bomb scenario.
Questioning the appropriate interpretation of “cruel and unusual punishment” clause of the Eighth Amendment is not the only complex question involved. Given the status of prisoners subject to the interrogation techniques, the inquiry as to whether or not the Bill of Rights extends the same guarantees to non-citizens as it does to American citizens is a crucial element of assessing the legality of the torture program.
The answer to this question proves to be even more inscrutable. To understand the peculiarity of outcomes, take for example the affirmative response to the question. If we are to confidently assert that the Bill of Rights unequivocally extends not just to American citizens but to noncitizens as well, expansion of protection against cruel and unusual punishment is only one of several logical consequences. Under the same premise, noncitizens would be able to donate to political campaigns in America, citing the protections guaranteed to citizens under the First Amendment, an unavoidable yet surely absurd interpretation.
By contrast, rejecting the principal altogether would mean that the free speech right of foreigners could be easily taken away by the U.S. federal government without any recourse. To accord with commonly held American beliefs, the answers to such questions must lie somewhere in between. Still, enough exists in the language of these constitutional amendments to serve as a guide to solving some of these dilemmas.
In many instance, different amendments expressly mention the subject for whom protection is sought. The Fourteenth Amendment of the U.S. Constitution specifically limits the protection of “privileges and immunities” to “citizens of the United States.” Likewise, the 15th, 24th and 26th Amendments, which concern the right to vote, are expressly aimed at “citizens of United States.” The Sixth Amendment grants the protection against self-incrimination not to citizens but to “the accused,” a term that can naturally encompass both citizens and foreigners. The 1st, 2nd, and 4th Amendments are designed more ambiguously to protect “the People.” Even more cryptic language belongs to those amendments that affirm or negate the federal government’s powers without mentioning the subject. The Ninth Amendment is such an example, simply reading, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
In Carlson v. London, the Supreme Court held that the first clause of the Eighth Amendment protection against the imposition of excessive bail did not extend to aliens, after Congress had granted authority to the Attorney General to indefinitely detain and deny bail for aliens who might pose a threat to the nation. No similarly conclusive decision has yet been rendered by the Supreme Court to extend that logic to the second clause of the Eighth Amendment. Nonetheless, current legal precedent seems to favor Justice Antonin Scalia’s interpretation that the question of Eighth Amendment protection of aliens is not as ambiguous as popular discourse might suggest.
The current contentious battle over the necessity of practice of torture is borne out of conflicting voices in U.S. history. Accurate historical assessments exist that question the extension of the ban against cruel and unusual punishment to alien combatants who may possesses valuable information that can save lives. Yet equally if not more valid is the claim that the nebulous treatment of the subject in domestic U.S. legal documents must yield to the much clearer voice that the U.S. has lent to the international community through its international obligations. Unfortunately, the U.S. will lose its moral war against terrorism if it proves as credulous in suspending its principles as the enemy is calculated in rejecting them.
Kia Rahnama is a student of international law at the George Washington University. He frequently writes about politics and cinema and can be found on Twitter at @KRahnama.
This piece was originally published at www.iar-gwu.org. Rick Berger of George Washington University was the editor for this piece.