Why the US Founding Fathers forbade torture

December 10, 2014 at 10:50 pm (Democratic Party, history, Human rights, posted by JD, reblogged, Republican Party, terror, United States)

By Juan Cole (reblogged from Informed Comment):

I have argued on many occasions that the language of patriotism and appeal to the Founding Fathers and the constitution must not be allowed to be appropriated by the political right wing in contemporary America, since for the most part right wing principles (privileging religion, exaltation of ‘whiteness’ over universal humanity, and preference for property rights over human rights) are diametrically opposed to the Enlightenment and Deist values of most of the framers of the Unites States.

We will likely hear these false appeals to an imaginary history a great deal with the release of the Senate report on CIA torture. It seems to me self-evident that most of the members of the Constitutional Convention would have voted to release the report and also would have been completely appalled at its contents.

The Bill of Rights of the US Constitution is full of prohibitions on torture, as part of a general 18th century Enlightenment turn against the practice. The French Encyclopedia and its authors had agitated in this direction.

Two types of torture were common during the lifetimes of the Founding Fathers. In France, the judiciary typically had arrestees tortured to make them confess their crime. This way of proceeding rather tilted the scales in the direction of conviction, but against justice. Pre-trial torture was abolished in France in 1780. But torture was still used after the conviction of the accused to make him identify his accomplices.

Thomas Jefferson excitedly wrote back to John Jay from Paris in 1788:

“On the 8th, a bed of justice was held at Versailles, wherein were enregistered the six ordinances which had been passed in Council, on the 1st of May, and which I now send you. . . . By these ordinances, 1, the criminal law is reformed . . . by substitution of an oath, instead of torture on the question préalable , which is used after condemnation, to make the prisoner discover his accomplices; (the torture abolished in 1780, was on the question préparatoire, previous to judgment, in order to make the prisoner accuse himself;) by allowing counsel to the prisoner for this defence; obligating the judges to specify in their judgments the offence for which he is condemned; and respiting execution a month, except in the case of sedition. This reformation is unquestionably good and within the ordinary legislative powers of the crown. That it should remain to be made at this day, proves that the monarch is the last person in his kingdom, who yields to the progress of philanthropy and civilization.”

Jefferson did not approve of torture of either sort.

The torture deployed by the US government in the Bush-Cheney era resembles that used in what the French called the “question préalable.” They were being asked to reveal accomplices and any further plots possibly being planned by those accomplices. The French crown would have argued before 1788 that for reasons of public security it was desirable to make the convicted criminal reveal his associates in crime, just as Bush-Cheney argued that the al-Qaeda murderers must be tortured into giving up confederates. But Jefferson was unpersuaded by such an argument. In fact, he felt that the king had gone on making it long past the time when rational persons were persuaded by it.

Bush-Cheney, in fact, look much more like pre-Enlightentment absolute monarchs in their theory of government. Louis XIV may not have said “I am the state,” but his prerogatives were vast, including arbitrary imprisonment and torture. Bush-Cheney, our very own sun kings, connived at creating a class of human beings to whom they could do as they pleased.

When the 5th amendment says of the accused person “nor shall be compelled in any criminal case to be a witness against himself” the word “compelled” is referring to the previous practice of judicial torture of the accused. Accused persons who “take the fifth” are thus exercising a right not to be tortured by the government into confessing to something they may or may not have done.

Likewise, the 8th Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” is intended to forbid post-sentencing torture.

The 8th Amendment was pushed for by Patrick Henry and George Mason precisely because they were afraid that the English move away from torture might be reversed by a Federal government that ruled in the manner of continental governments.

Patrick Henry wrote,

“What has distinguished our ancestors?–That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany.”

It was objected in the debate over the Bill of Rights that it could be ignored. George Mason thought that was a stupid reason not to enact it:

“Mr. Nicholas: . . . But the gentleman says that, by this Constitution, they have power to make laws to define crimes and prescribe punishments; and that, consequently, we are not free from torture. . . . If we had no security against torture but our declaration of rights, we might be tortured to-morrow; for it has been repeatedly infringed and disregarded.

Mr. George Mason replied that the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.”

It was the insistence of Founding Fathers such as George Mason and Patrick Henry that resulted in the Bill of Rights being passed to constrain the otherwise absolute power of the Federal government. And one of their primary concerns was to abolish torture.

The 5th and the 8th amendments thus together forbid torture on the “question préparatoire” pre-trial confession under duress) and the question préalable (post-conviction torture).

That the Founding Fathers were against torture is not in question.

Fascists (that is what they are) who support torture will cavil. Is waterboarding torture? Is threatening to sodomize a man with a broomstick torture? Is menacing a prisoner with a pistol torture?

Patrick Henry’s discourse makes all this clear. He was concerned about the government doing anything to detract from the dignity of the English commoner, who had defied the Norman yoke and gained the right not to be coerced through pain into relinquishing liberties.

Fascists will argue that the Constitution does not apply to captured foreign prisoners of war, or that the prisoners were not even P.O.W.s, having been captured out of uniform.

But focusing on the category of the prisoner is contrary to the spirit of the founding fathers. Their question was, ‘what are the prerogatives of the state?’ And their answer was that the state does not have the prerogative to torture. It may not torture anyone, even a convicted murderer.

The framers of the Geneva Convention (to which the US is signatory) were, moreover, determined that all prisoners fall under some provision of international law. René Värk argues:

“the commentary to Article 45 (3) asserts that ‘a person of enemy nationality who is not entitled to prisoner-of-war status is, in principle, a civilian protected by the Fourth Convention, so that there are no gaps in protection’.*32 But, at the same time, it also observes that things are not always so straightforward in armed conflicts; for example, adversaries can have the same nationality, which renders the application of the Fourth Convention impossible, and there can arise numerous difficulties regarding the application of that convention. Thus, as the Fourth Convention is a safety net to persons who do not qualify for protection under the other three Geneva Conventions, Article 45 (3) serves yet again as a safety net for those who do not benefit from more favourable treatment in accordance with the Fourth Convention.”

Those who wish to create a category of persons who may be treated by the government with impunity are behaving as fascists like Franco did in the 1930s, who also typically created classes of persons to whom legal guarantees did not apply.

But if our discussion focuses on the Founding Fathers, it isn’t even necessary to look so closely at the Geneva Conventions.

Thomas Jefferson wrote in the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The phrase “all men” means all persons of any nationality.

We know what the Founding Fathers believed. They believed in universal rights. And they believed in basic principles of human dignity. Above all, they did not think the government had the prerogative of behaving as it pleased. It doesn’t have the prerogative to torture.

12 Comments

  1. Ross Fenton said,

    A terrific analysis as to why the actions of Bush and Cheney were criminal. I don’t pretend to have any deep knowledge of the roll out of the policy but even informed by just the daily news any thinking person could see this was the case and that excesses of abuse were bound to ensue. Their specious and disingenuous reasoning was obvious. The notion of a facility like Guantanamo, policies like rendition, and even the controversy over WMD’s sent enough signals for anyone who thought about it to know that any of the propaganda that tried to justify or mitigate the impact of interrogation techniques was utterly compromised. It is no wonder many Americans are expressing feelings of shame at how principals at the heart of their democracy have been compromised.

    As an Australian I have similar feelings about our governments manipulation of domestic and international law and convention in its treatment of refugees. Their incarceration is legally questionable and ethically unacceptable. The physical and psychological damage done to these people has much in common with outright torture.

    Ross Fenton

  2. Mike Killingworth said,

    Is the Declaration of Independence part of the US constitution? I understood them to be two separate documents, one with legal, the other with moral force.

  3. caseypurvis said,

    OK—WHAT SPECIFIC ACTS OF TORTURE OCCURRED? WHERE CAN I READ THEM?

    • Ross said,

      Seriously? Well, let me see: extreme physical and psychological abuse and sensory deprivation; water boarding, anal rape, extremes of physical endurance or contortions, exposure ( at least one prisoner died ), isolation, extreme sleep deprivation, and so on. Perhaps like Cheyney and others in the Bush Administration you don’t consider this torture?

      Are you seriously asking for references? Read anything about prisoner conditions at Guantanamo let alone revelations from Abu Ghraib or reports of treatment of detainees ‘rendered’ to authorities in places like Egypt.

      Ross

      • caseypurvis said,

        THANKS FOR RESPONDING. I’M OVERWHELMED RITE NOW. CAN YOU PROVIDE VALID LINKS. NOT PROGRESSIVES. THEY LIE.
        ONE OF THE NICE THINGS I CAN SAY IS NO MORE 911’S
        CASEY

    • Ross said,

      Casey, as I confessed, beyond the usual daily news channels I have done no deep research so I’m sure there’s be many people on this forum more qualified to point you to properly attributed sources.( or you could do it yourself) My point was more general: that the circumvention of moral, ethical and legal standards inevitably leads to abuse whether, as here, we’re talking about torture or other classic cases such as Watergate, that great American hero Ollie North, Australian treatment of refugees or whatever.

      As to progressives, I’ll presume you mean what I’m familiar with what the right in the US calls Liberals. I suppose they might lie on occasion but if you’re implying there is a leftish conspiracy to assert there has been torture when there has not been I doubt I have the ability to convince you otherwise.

      Also as to no more 911’s: so by implication are you saying torture prevented this? I could make the case that the CIA/FBI dropped the ball on 911 and have subsequently upped their performance so that a 911, if anyone has seriously planned one, is now far more difficult.

      In case you think I’m ’a bleeding heart’ let me say that I think there are extreme hypothetical situations where torture might be used for a greater good. Let’s say Timothy McVeigh had been apprehended before detonating the bomb and authorities knew detonation was imminent – I’d approve torture. What I wouldn’t approve is the arrest and torture of a bunch of people who, sort of, kind of, might of, been associated with McVeigh.

      Of course McVeigh was a US citizen so torture wouldn’t have been possible. Which illustrates another point Shiraz Socialist was making: the US constitution and bill of rights expresses universal values which ethically and morally should extend beyond US citizenship otherwise the US, which so often lectures the world on such issues, is exposed as hypocritical and it’s so called world leadership seriously compromised. In fact the desire to not have this hypocrisy exposed is probably a major component in the Orwellian newspeak denial and redefinition of torture by the likes of Cheney.

      This is all such a shame because a strong and moral US can certainly be a force for good in the world.

      Ross.

      • caseypurvis said,

        LINKS TO PEOPLE AND THEIR REPORTS. GIVE ME JUST ONE. HATE TO TYPE ON THE OTHER HAND I HAVE AN 135 IQ AND CAN BUILD YOUR CAR FOR YOU WITH MY OWN HANDS, MANUFACTURER, CONSTITUTIONALIST, SCOTSMAN

      • Ross said,

        Well, though previously tingling my ‘windup’ radar is now screaming. However. I’ll plunge on, at least the exercise is clarifying my thoughts for me.

        Link: https://www.aclu.org/national-security/senate-torture-report-and-cia-reply-foia

        A ‘progressive’ site no doubt, so they might be Liars, but they can’t fudge the facts they’re reporting. The Guardian has done good reporting as well. I note that virtually no one denies these practises took place though some deny it constitutes torture and they’re entitled to the opinion if genuine. For many I believe they know bloody well that it’s torture and denial is a tactic and I believe they should be called on it.

        The major criticism of the congressional report is not that it’s inaccurate or manufactured but that it’s not critical enough about the failure of congressional over sight! If you don’t accept the report is genuine and that these practises were carried out I can’t do more. You can of course believe torture was administered but believe it was justified by the results. Your prerogative and of course I disagree.

        By way of conversation the only time I got a report on my IQ it was also 135! That was around 6 decades ago and untold amounts of alcohol so you probably have the advantage. I could use your automotive skills…. I’ve been trying to get started on my 42 WLA Harley for 5-6 years but I’m making painfully slow progress. Probably spending too much time on blogs.

        Cheers,
        Ross.

      • caseypurvis said,

        YOU ARE BETTER OFF ON THE INTERNET WITH THE HARLEY—135 CAN FIGURE IT OUT. EVERYONE YOU ASK WILL BE 100 OR THEREABOUTS.THEY WILL GIVE YOU BAD INFO.
        THEY DIDN’T TALK TO ANYONE WHO WAS THERE ETC. THE PEOPLE
        PEOPLE WHO WERE RIPPED IT APART. I THINK FINSTEIN SHOULD BE SHOT AS A TRAITOR

      • Ross said,

        Who the hell is ‘FINSTEIN’? And I’m not for shooting anybody … it wouldn’t be democratic or in the spirit of the founding fathers. Or do you have issues with them as well?.

      • caseypurvis said,

        FEINSTEIN OR WHATEVER HER NAME IS IS THE PIG GETTING THE CIA REPORT. SHE IS A TRAITOR.
        WE ARE NOT A DEMOCRACY WE ARE A REPUBLIC

      • Ross said,

        OK. So now I truly see where you’re coming from. We’d have saved a lot of time if you’d said this in the first place. I guess the one thing we can agree on is that whatever it is the USA is not a very good example of a democracy.

        Signing off on this thread,

        Cheers,
        Ross.

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