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. #51
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by OrphanSlug View Post
    Yes, the US Constitution does prohibit torture but not quite in a way we would want it to. It can be found in article six, second clause.

    "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

    Technically by that line alone our agreements with the UN on torture become "supreme law of the land" and as such are Constitutionally recognized. That would mean that all UN resolutions and conventions that we agreed to on Torture as well as the applicable Geneva Conventions we would have to abide by as a matter of law. The awkward part of this is we have no real resolution to challenge this but by the Supreme Court on the grounds of interpretation of any resolutions, conventions, and treaties signed in accordance with our own laws and government limitations. But in this area, there is not much directly stated as a limitation.

    The 8th Amendment part of the debate I am not so sure applies near as much.

    "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

    The jurisprudence of the conversation here has more to do with punishments handed down which at the time of the text had the tone of penalties and punishment that was considered barbaric, or excessive in terms of law. Like public lashings, or burning someone at the stake, or seizing someone's total net worth over a minor violation of the law. Not a bit of the Amendment by design has to do with holding "prisoners of war" or "enemy combatants" or whatever the phrase of the day is to describe someone held in some state without the involvement of process of law.
    umm no... treaties do not become "supreme law of the land"....only the Constitution is the supreme law of the land.
    the Supremacy clause exists to make it clear that the Constitution is supreme to all treaties or laws ( existing or future laws/treaties)

    I don't believe the 8th comes into play when we are talking torture of unlawful combatants.... EIT/torture is not a punishment
    if the action ( torture) is intended to cause pain/mental anquish, etc.... it would be considered torture and would be unlawful ( not necessarily unconstitutional)
    if it is intended to gather information, it can be lawful .

    our own law( US code).. and that of the UN.. stipulates that intent is a component to determine whether or not an action is torture.

  2. #52
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by American View Post
    Seems like the wrong question since the question addressed by the Justice Department on this was whether the EIT were legally torture. Based on the lawyers, everyone moved ahead on the basis that what they were doing was legal.
    Does the constitution specifically prohibit murder?

    Rape?

    Incest?

    Embezzlement?


    In a discussion about the law, it is usually important to distinguish between the architecture law, the co-called law of the land and legislative law that is designed to empower the various governments to make appropriate laws of specifying, prohibiting and determining sentences.

    Most confusing argument I have seen in years. It's not even apples and oranges, but trees and fruit.
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  3. #53
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Thrilla View Post
    umm no... treaties do not become "supreme law of the land"....only the Constitution is the supreme law of the land.
    the Supremacy clause exists to make it clear that the Constitution is supreme to all treaties or laws ( existing or future laws/treaties)


    I don't believe the 8th comes into play when we are talking torture of unlawful combatants.... EIT/torture is not a punishment
    if the action ( torture) is intended to cause pain/mental anquish, etc.... it would be considered torture and would be unlawful ( not necessarily unconstitutional)
    if it is intended to gather information, it can be lawful .

    our own law( US code).. and that of the UN.. stipulates that intent is a component to determine whether or not an action is torture.
    Did you actually read the clause...

    "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

    That is a big list of things considered the supreme law of the land, one of them is "treaties made, or shall be made under the authority of the United States."
    "Every time something really bad happens, people cry out for safety, and the government answers by taking rights away from good people." - Penn Jillette.

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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by OrphanSlug View Post
    Did you actually read the clause...

    "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

    That is a big list of things considered the supreme law of the land, one of them is "treaties made, or shall be made under the authority of the United States."
    I might have read it a time or 2 in the last 60 years... I might have read a couple of dozens cases having to do with the supremacy clause as well.


    the supremacy clause, overall, is about state laws/statutes/Constitutions and their relationship to the US Constitutions and federal law.( US law is supreme to state law)
    the supremacy clause is not applicable to a case in which the primary actor is the federal government allegedly violating federal law.....

    the supremacy clause really has zero to do with the EIT/Torture issue... absolutely nothing.

    if you are trying to involve a UN treaty in the mix, and using the supremacy clause as a way to say " see! we are bound to the UN treaty!".. there's absolutely no need to do so... it's already barred in the US code...Title 18 › Part I › Chapter 113C › 2340A

    EIT is allowable under our US code.. provided the person being interrogated is not present in the US and is not a US "national".
    (well, it doesn't so much allow it as it stipulates jurisdiction...)

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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Gaius46 View Post
    I don't have a problem with putting a bullet in the bad guy's head. But making someone suffer for extended periods is sick.

    I'm sure many of the people who advocate for torture are really looking for revenge. Not so sure they'd be so quick to go for if if they were the ones inflicting the pain.
    Many people enjoy inflicting pain and it can be addictive. That is one of the main reasons why torture should not be used.

  6. #56
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by WCH View Post
    Interesting thanks. The author agrees that that the Constitution does apply to non citizens but notes that the SC's feelings on the topic have changed over time.
    Don't be a grammar nazi - Marcus Aurelius, Meditations, Book 1 #7

  7. #57
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by OrphanSlug View Post
    Yes, the US Constitution does prohibit torture but not quite in a way we would want it to. It can be found in article six, second clause.

    "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

    Technically by that line alone our agreements with the UN on torture become "supreme law of the land" and as such are Constitutionally recognized. That would mean that all UN resolutions and conventions that we agreed to on Torture as well as the applicable Geneva Conventions we would have to abide by as a matter of law. The awkward part of this is we have no real resolution to challenge this but by the Supreme Court on the grounds of interpretation of any resolutions, conventions, and treaties signed in accordance with our own laws and government limitations. But in this area, there is not much directly stated as a limitation.

    The 8th Amendment part of the debate I am not so sure applies near as much.

    "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

    The jurisprudence of the conversation here has more to do with punishments handed down which at the time of the text had the tone of penalties and punishment that was considered barbaric, or excessive in terms of law. Like public lashings, or burning someone at the stake, or seizing someone's total net worth over a minor violation of the law. Not a bit of the Amendment by design has to do with holding "prisoners of war" or "enemy combatants" or whatever the phrase of the day is to describe someone held in some state without the involvement of process of law.
    I agree. Thanks.
    Don't be a grammar nazi - Marcus Aurelius, Meditations, Book 1 #7

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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Thrilla View Post
    umm no... treaties do not become "supreme law of the land"....only the Constitution is the supreme law of the land.
    the Supremacy clause exists to make it clear that the Constitution is supreme to all treaties or laws ( existing or future laws/treaties)

    I don't believe the 8th comes into play when we are talking torture of unlawful combatants.... EIT/torture is not a punishment
    if the action ( torture) is intended to cause pain/mental anquish, etc.... it would be considered torture and would be unlawful ( not necessarily unconstitutional)
    if it is intended to gather information, it can be lawful .

    our own law( US code).. and that of the UN.. stipulates that intent is a component to determine whether or not an action is torture.
    Treaties that have gone through the full ratification process have the weight of Federal law. They are supreme insofar as they supersede state law. Treaties do not supersede the Constitution. A treaty provision that violates the Constitution is not enforceable.
    Don't be a grammar nazi - Marcus Aurelius, Meditations, Book 1 #7

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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Gaius46 View Post
    Treaties that have gone through the full ratification process have the weight of Federal law. They are supreme insofar as they supersede state law. Treaties do not supersede the Constitution. A treaty provision that violates the Constitution is not enforceable.
    that is all true...

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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by pbrauer View Post
    Yes

    No

    Other
    As a punishment, clearly. As an interrogation technique, no.

    However, thankfully, it's not a concern, since we have such a thing as a Justice Department, which went to rather great effort to keep us from doing so.

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