View Poll Results: Does the U.S. Constitution prohibit torture?

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    33 73.33%
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Thread: Does The U.S. Constitution prohibit torture?

  1. #111
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Dayton3 View Post
    How do U.S. laws define POWs then?
    Good question. This is where 'cruel and unusual punishment' might come in, as well as due process, and congresses power to make all laws. I assume their are DOD specific guidelines.

  2. #112
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Dayton3 View Post
    not wearing uniforms is a very big deal in warfare as it allows opposing troops to distinguish combatants from noncombatants and thus spare noncombatants from attack.

    and what in international law guarantees illegal combatants due process?
    So say Russia invaded the United States and you and your neighbors armed yourselves and fought an insurgency. You'd be illegal combantants? People whose homes are invaded are just supposed to give up?
    Don't be a grammar nazi - Marcus Aurelius, Meditations, Book 1 #7

  3. #113
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Gaius46 View Post
    So say Russia invaded the United States and you and your neighbors armed yourselves and fought an insurgency. You'd be illegal combantants? People whose homes are invaded are just supposed to give up?
    Yes. Because the lack of uniforms (doesn't have to be full uniforms, just something distinguishable) would mean that the Russian invaders could not identify the true noncombatants and thus could justify razing whole neighborhoods harboring insurgents.

    The idea of requiring uniforms or at least clear identifiers for fighters of any kind is to PROTECT noncombatants.

  4. #114
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Gaius46 View Post
    So say Russia invaded the United States and you and your neighbors armed yourselves and fought an insurgency. You'd be illegal combantants? People whose homes are invaded are just supposed to give up?
    Or to identify themselves as fighting for the state, by putting on a uniform. No one ever said the international laws were practical.

  5. #115
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Dayton3 View Post
    not wearing uniforms is a very big deal in warfare as it allows opposing troops to distinguish combatants from noncombatants and thus spare noncombatants from attack.
    Oh yes, that's huge. Because, y'know, it's not like soldiers wear camouflage to prevent themselves from being seen by the enemy in the first place.

    Also, uniforms are not required in all circumstances to be classified as a lawful combatant. The 4th Geneva conventions classifies the following as lawful combatants:

    Inhabitants of a non-occupied territory who, on the approach of the enemy,
    spontaneously take up arms to resist the invading forces, without
    having had time to form themselves into regular armed units, provided
    they carry arms openly and respect the laws and customs of war.


    and what in international law guarantees illegal combatants due process?
    We can start with the Geneva Conventions, Article 5. When someone is captured, they have to go through a tribunal to determine their status:

    Should any doubt arise as to whether persons having committed a belligerent
    act and having fallen into the hands of the enemy belong to any of the categories
    enumerated in Article 4, such persons shall enjoy the protection of the
    present Convention until such time as their status has been determined by a
    competent tribunal.

    I'd say it also falls under the Universal Declaration of Human Rights. The US Constitution and most constitutions are also applicable, as indicators of an acceptance of due process as a human right.

    Also: Where is it written that unlawful combatants can be summarily executed? The Geneva Conventions grants no such power to the detaining force. US law also certainly doesn't allow that. The SCOTUS determined in 1942 that unlawful combatants (in that case, German spies caught in the US) must face a military tribunal. This was reasserted with the Gitmo prisoners, in a ruling that also cited Article 5 of the Geneva Conventions.

  6. #116
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Visbek View Post

    [color=blue][indent]Should any doubt arise .
    Key point.

    What if no doubt exists that a person has committed a belligerent act?

    Then obviously they are not entitled to any form of due process.

  7. #117
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Visbek View Post
    Errr.... yeah, that's kind of how it works.

    Although the federal government is not the same thing as "the state," citizens cannot unilaterally declare war on citizens or nations. Individual states are also not empowered to declare war.

    Private citizens are also not empowered to declare their own laws, or to declare laws unconstitutional. You may express those opinions, you may bring a lawsuit to that effect (if you have standing). I.e. there's a process for that, because a state cannot possibly function if private citizens can arbitrarily refuse, at the time and place of their choosing, to disobey a law they classify as "unconstitutional."



    Both.

    Here's the Armed Forces oath as an example:

    I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.



    I support a government by and for the people. We don't live in a totalitarian state, and suggesting so indicates that you have no concept of life in a totalitarian state.



    Sure. That's one of the jobs of the courts, to resolve those conflicts.



    That's quite the leap of logic.

    Again, individual citizens are not empowered to unilaterally declare that "X is a traitor" or "we are at war with Canada" or "the ban on smoking in a restaurant is unconstitutional."

    However, I would say that any armed forces units, or ex-military, who try to band together to overthrow the federal government will almost certainly face charges of treason, and that is how the law is designed to work. There is nothing new about this, and it's been the law of the land from the start. So if you regard something like this as showing the "government as an enemy of the people and the constitution," then the federal government has been an "enemy" since day 1. Now that's patriotism!
    Dont think so, the reason citizens have weapons is so they can control the gov. it is the peoples decision to overthrow or accept the existing gov. not the court, not the state or fed.

  8. #118
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Gaius46 View Post
    I'm not sure what detainment has to do with this discussion at hand. The question on the table is whether or not there are Constitutional prohibitions against torture. Illegal detainments, habeas etc don't seem to play into the discussion.

    My argument with regard to torture is that the Eighth doesn't apply because torture in the case under discussion is not a punishment. It's a tool to get information. The only Constitutional prohibition against torture that seems plausible, though indirect, is the treaty clause.
    The points about detainment is that there is no constitutional basis for the federal government to detain someone that does not occur as part of due process (interpretations of the 10th, 8th, and 5th amendment). Various Amendments (5th and 8th) of the Bill of Rights guarantees due process to any person. The one exception is that trials can be postponed by the President, but that doesn't extend to violating any other aspect of due process.

    For example, I could say that torture (regardless of whether it is to punish or acquire information) could leave the prisoner unable to exercise their right to disagree with the lawful authority that is containing them, particularly tortures that deprive them of the full and able use of their will and senses.

    Note - you can also stick to an even less complex reading of the 10th that the federal government isn't empowered to torture because it isn't a power delegated to it by the Constitution from the 50 states.
    Last edited by Morality Games; 12-19-14 at 07:17 PM.
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  9. #119
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by d0gbreath View Post
    I wouldn't go with scalia to take the garbage out. He is correct. No mention of treatment of non-US citizens in the Constitution.

    However, there used to be by-laws created by the Geneva convention that clearly state that POWs are not to be tortured.
    No mention of citizens either, until the 14th amendment. The Bill of Rights was written to be applicable to aliens and resident aliens as well as citizens, hence the use of the word "person" in the 5th Amendment to describe the rights possessed by the accused. Black people didn't count because they were only 3/5 of a person, but visiting Western Europeans accused of crimes did; whatever being that the common law would acknowledge as a person (usually including foreigners) enjoyed constitutional rights in American territory.
    If you notice something good in yourself, give credit to God, not to yourself, but be certain the evil you commit is always your own and yours to acknowledge.

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