Balkinization  

Thursday, June 24, 2004

Torture and the Iraq Constitution

Cass Sunstein

The interim Constitution of Iraq has played surprisingly little role in public debates involving the Department of Justice, the United States, and torture. The infamous and reckless Bybee memorandum, by the Office of Legal Counsel, ventured two key conclusions. The first, and more plausible, is that American officials have the legal authority to engage in “cruel, inhuman, or degrading” treatment of prisoners, if that treatment falls short of torture. The second, and far less plausible, is that as Commander-in-Chief, the President might well have the authority to torture suspected terrorists, and that Congress might well lack the constitutional power to infringe on the President’s authority to engage in torture.

Let's compare the interim Constitution of Iraq. As for the second issue, that document is unambiguous: Article 15(j) announces, flatly, that “torture in all its forms, physical or mental, shall be prohibited under all circumstances.” (The last three words are of course the crucial ones.) But Iraq's interim Constitution goes much further. While OLC says that "cruel, inhuman, or degrading" acts are permissible, Article 15(j) of the Constitution of Iraq imposes an absolute ban on “cruel, inhuman, or degrading treatment,” even if that treatment falls short of torture. The most ironic point is that the OLC uses the same words ("cruel, inhuman, or degrading") as the Constitution of Iraq, with OLC approving the very treament that the Iraqi Constitution bans.




Comments:

I have two questions about this: 1) does this guy REALLY belong on the federal bench? and 2) should Bush be installed in office a second time (one really can't say "reelected"), will we remember the names on these memoranda when they come before the Senate Judiciary Committee as nominees for Circuit Court and Supreme Court appointments?
 

I have two questions about this: 1) does this guy REALLY belong on the federal bench? and 2) should Bush be installed in office a second time (one really can't say "reelected"), will we remember the names on these memoranda when they come before the Senate Judiciary Committee as nominees for Circuit Court and Supreme Court appointments?
 

I have two questions about this: 1) does this guy REALLY belong on the federal bench? and 2) should Bush be installed in office a second time (one really can't say "reelected"), will we remember the names on these memoranda when they come before the Senate Judiciary Committee as nominees for Circuit Court and Supreme Court appointments?
 

I have two questions about this: 1) does this guy REALLY belong on the federal bench? and 2) should Bush be installed in office a second time (one really can't say "reelected"), will we remember the names on these memoranda when they come before the Senate Judiciary Committee as nominees for Circuit Court and Supreme Court appointments?
 

Professor Sunstein, I have enjoyed following your foray into the blogosphere. I hope that you will consider venturing out on your own soon.

It would be nice to be certain that our constitution controls the commander in chief before discussing the relevance of the interim Constitution of Iraq.
 

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