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

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

  1. #61
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by DA60 View Post
    If it isn't, it bloody well should be.
    Exactly. If torture is not unconstitutional then that oversight needs to be corrected asap.

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

    Quote Originally Posted by Gaius46 View Post
    I'm not sure cruel and unusual punishment applies here since the 8th deals with crime and national defense. Torture is wrong because it's incompatible with who we are supposed to be as a people (not to mention any treaty obligations we have) but I'm not sure you can stretch the Constitution to make that case.
    It isn't a stretch. 8th Amendment bans cruel and unusual punishment while the 5th Amendment outlines that a detainee (a person being held against their will as a prisoner) can't be "compelled" to be a witness against themselves -- extending to their involvement in conspiracies of any sort. Even threatening to hurt the detainee or their associates counts as "compelling", and in a 18th century context, judicial torture was considered compulsion. In was a reaction to the ongoing policy of the French Crown to use torture to force political outcasts of suspect loyalties of revealing their affiliations in the interests of national security.

    The 5th Amendment governs the pre-trial treatment of prisoners, while the 8th amendment governs the post-trial treatment of criminals.
    Last edited by Morality Games; 12-16-14 at 12:43 AM.
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Morality Games View Post
    It isn't a stretch. 8th Amendment bans cruel and unusual punishment while the 5th Amendment outlines that a detainee (a person being held against their will as a prisoner) can't be "compelled" to be a witness against themselves -- extending to their involvement in conspiracies of any sort. Even threatening to hurt the detainee or their associates counts as "compelling", and in a 18th century context, judicial torture was considered compulsion. In was a reaction to the ongoing policy of the French Crown to use torture to force political outcasts of suspect loyalties of revealing their affiliations in the interests of national security.

    The 5th Amendment governs the pre-trial treatment of prisoners, while the 8th amendment governs the post-trial treatment of criminals.
    What trial has occurred with any of the detainees who've been tortured?
    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 tres borrachos View Post
    Scalia says the Constitution doesn't prohibit it. He knows more about the document than I do. So I'll go with him on this one.
    he may well know more, but he certainly doesn't judge as if he does


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

    Quote Originally Posted by Gaius46 View Post
    What trial has occurred with any of the detainees who've been tortured?
    The absence of a trial doesn't play to your argument's favor because it suggests the federal government can authorize a system of detention (military or civilian) that exists separately from a body of law that is compliant with the U.S. Constitution and its maxims. However, the 10th Amendment states the the federal government's power to create and enforce policy is limited to the prerogatives assigned to it in the U.S. Constitution.

    In short, under what vested constitutional authority does the federal government enjoy the power to detain a human being outside the context of a legal system -- of which trials necessarily form a part? Even if the Bill of Rights didn't explicitly ban the federal government from doing such a thing (which it does), it still wouldn't have any authority to do so because neither the Welfare or Commerce Clauses that liberal tout to expand federal powers ascribe such a power in a conservative/libertarian interpretation of the document.

    If we're being technical, even indefinite detention at Guantanamo Bay is still a legal designation within the constitutional system. The trial might be postponed indefinitely, but you can't detain a person with the touted legal intention of never giving them a trial.

    Or just the short version:

    The U.S. Constitution does not acknowledge the federal government has the power to detain someone unless they are also going to (a) put that person on trial or (b) release them -- in a manner consistent with those rights ascribed within the Bill of Rights. The President can postpone trials indefinitely during national emergencies, but in other ways the detention must comply with the maxims of the U.S. Constitution.

    In fact, taking a strict libertarian/conservative interpretation of the U.S. Constitution, I can make it even simpler than that: the U.S. Constitution and it amendments DO NOT give the federal government the authority to torture someone, so they aren't allowed to create a military or intelligence agency that is legally sanctioned to do so.
    Last edited by Morality Games; 12-16-14 at 01:50 AM.
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    Re: Does The U.S. Constitution prohibit torture?

    Quote Originally Posted by Thrilla View Post
    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...)
    So you say, but if you were right why bother with wording this clause in the manner we know it exists? Why bother adding in treaties (and by extension other agreements?)
    "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?

    Whether or not the Constitution prohibits torture seems to be irrelevant.
    If torture is condoned by any twisting and convoluted interpretation, then
    we are no longer the Exceptional Nation that we claim to be and are just
    another group of people looking out for our own interests and safety.
    Morals and safety should not be mutually exclusive.

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

    Quote Originally Posted by radcen View Post
    That statement presumes that torture isn't "cruel and unusual", but rather common/normal and reasonable.

    Some get around this by simply refusing to categorize torture as such, hence we get spin like "enhanced interrogation".
    That seems reasonable. Torture is usually associated with causing permanent injury, like pulling fingernails. Most people seem to be able to tell the difference when something crosses the line, and what the US did doesnt appear to do so.

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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.
    Actually, the constitution gives equal weight to itself and treaties.

    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

    But that assumes the treaties made do not conflict with the constitution or laws when made. Once they are made though, they carry equal weight.

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

    Quote Originally Posted by Morality Games View Post
    The absence of a trial doesn't play to your argument's favor because it suggests the federal government can authorize a system of detention (military or civilian) that exists separately from a body of law that is compliant with the U.S. Constitution and its maxims. However, the 10th Amendment states the the federal government's power to create and enforce policy is limited to the prerogatives assigned to it in the U.S. Constitution.

    In short, under what vested constitutional authority does the federal government enjoy the power to detain a human being outside the context of a legal system -- of which trials necessarily form a part? Even if the Bill of Rights didn't explicitly ban the federal government from doing such a thing (which it does), it still wouldn't have any authority to do so because neither the Welfare or Commerce Clauses that liberal tout to expand federal powers ascribe such a power in a conservative/libertarian interpretation of the document.

    If we're being technical, even indefinite detention at Guantanamo Bay is still a legal designation within the constitutional system. The trial might be postponed indefinitely, but you can't detain a person with the touted legal intention of never giving them a trial.

    Or just the short version:

    The U.S. Constitution does not acknowledge the federal government has the power to detain someone unless they are also going to (a) put that person on trial or (b) release them -- in a manner consistent with those rights ascribed within the Bill of Rights. The President can postpone trials indefinitely during national emergencies, but in other ways the detention must comply with the maxims of the U.S. Constitution.

    In fact, taking a strict libertarian/conservative interpretation of the U.S. Constitution, I can make it even simpler than that: the U.S. Constitution and it amendments DO NOT give the federal government the authority to torture someone, so they aren't allowed to create a military or intelligence agency that is legally sanctioned to do so.

    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.
    Don't be a grammar nazi - Marcus Aurelius, Meditations, Book 1 #7

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