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Does The U.S. Constitution prohibit torture?

Does the U.S. Constitution prohibit torture?


  • Total voters
    34
I don't know. Not a scholar. I'll defer to Scalia.

Why would you defer to one Justice of the Supreme Court? What is the position of the rest of the court? What has been the position of the courts since day one?
 
I don't think so...I believe there are limits to who and where the Constitution applies.

At the same time, that doesn't mean I think it should be done.
 
Why would you defer to one Justice of the Supreme Court? What is the position of the rest of the court? What has been the position of the courts since day one?

Who cares? They're all mouthpieces for ideology or moral and judicial compromise. You have to really strain yourself to assign them any credibility.
 
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There's nothing in the Constitution that I'm aware of that prohibits torture but that's the wrong question. The right question is "Do the American people want to accept that torture, a morally reprehensible and ineffective tactic, is being done in their name?"
 
5th Amendment bars self-incrimination and requires due process prior to punishment (imprisonment).

8th Amendment bars unusual punishment. 14th Amendment also guarantees due process.

US signed the 1987 UN Convention Against Torture. The definition of torture stipulated by the US in the treaty reservations is:

the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-9&chapter=4&lang=en

This is basically the same language as the US Code.

18 U.S. Code § 2340 - Definitions | LII / Legal Information Institute
 
This tendency of presuming the most arcane about the U.S. Constitution precepts needs to go. Very little about what was written in the U.S. Constitution is mysterious when you look at in context.

The Western world during the onset of U.S. republicanism was a highly reactionary time period where the last vestiges of the medieval period (those that persisted past the Renaissance) were being swept away due to their association with aristocratic and monarchical privilege -- often in the fires of revolution. "Cruel and unusual punishment" means any of the classic torture devices and methods associated with the Old Order, including ripping off finger nails, inquisitorial style psychological harassment and manipulation techniques, and water boarding. Anything that runs contrary to the "enlightenment" in the Age of Enlightenment.

Only thing mentioned in the report that might not pass as "cruel and unusual punishment" in the reckoning of the Founding Fathers would be solitary confinement, since forcing prisoners to live away from society like monks silently contemplating their sins was considered an ideal prison reform by the educated men of that time period.

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.
 
Yes

No

Other

Not explicity, BUT it does prohibit cruel punishment. This isnt punishment though, its intelligence gathering. We dont cause discomfort to discourage a behavior to but to illicit information.

Then again, we signed treaties prohibiting torture and treaties have equal weight to the constitution. SO, I suppose it depends on how you define torture.
 
5th Amendment bars self-incrimination and requires due process prior to punishment (imprisonment).

8th Amendment bars unusual punishment. 14th Amendment also guarantees due process.

US signed the 1987 UN Convention Against Torture. The definition of torture stipulated by the US in the treaty reservations is:

the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-9&chapter=4&lang=en

This is basically the same language as the US Code.

18 U.S. Code § 2340 - Definitions | LII / Legal Information Institute

Whats due process in terms of war, though?
 
There's nothing in the Constitution that I'm aware of that prohibits torture but that's the wrong question. The right question is "Do the American people want to accept that torture, a morally reprehensible and ineffective tactic, is being done in their name?"

The answer would be appear to be yes. People generally seem to be ok with the idea of permanent imprisonment and harsh interrogation of foreign enemies, so long as it isnt TOO harsh.
 
There's nothing in the Constitution that I'm aware of that prohibits torture but that's the wrong question. The right question is "Do the American people want to accept that torture, a morally reprehensible and ineffective tactic, is being done in their name?"

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 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".

Not sure that clause applies here. The 8th deals with criminal justice, not national security.
 
There's nothing in the Constitution that I'm aware of that prohibits torture but that's the wrong question. The right question is "Do the American people want to accept that torture, a morally reprehensible and ineffective tactic, is being done in their name?"

Just playing devil's advocate, but there are plenty of Americans who don't find torture morally reprehensible and couldn't care less if it's ineffective, they just want revenge on people who they think have done the nation or its people harm. What do you say to those people?
 
Just playing devil's advocate, but there are plenty of Americans who don't find torture morally reprehensible and couldn't care less if it's ineffective, they just want revenge on people who they think have done the nation or its people harm. What do you say to those people?


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.
 
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.

Not according to many people, and again, I'm just throwing that out there, I'm not saying I agree with it.

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.

I've talked to a lot of people who think that Osama bin Laden got off way too easily, they'd have stood in line for the opportunity to take their shot at him personally. I think you underestimate the rage that many people have toward terrorists that harm Americans.
 
Not according to many people, and again, I'm just throwing that out there, I'm not saying I agree with it.



I've talked to a lot of people who think that Osama bin Laden got off way too easily, they'd have stood in line for the opportunity to take their shot at him personally. I think you underestimate the rage that many people have toward terrorists that harm Americans.

My experience has been that a lot of people talk a good game. I don't doubt there's alot of anger out there, I just doubt that there are lot of people who could stomach personally torturing someone else.
 
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.
 
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.


"Down size ...Layoff

"Vertical integration"...Pyramiding a monopoly

"Enhanced Interrogation...Torture


I mean, how stupid do they think people in this world are?

And yes the constitution prohibits torture the same way that it declared the blessing of liberty.
 
The real question is: do constitutional protections against torture extend to non-citizen enemy/unlawful combatants (or suspected ones) on foreign soil?

As for the poll, the constitution definitely prohibits torture in general.
 
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