Balkinization: How Torture Works

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# posted by

Professor Balkin, thank you for everything you write about this issue. We need more people like you.

For those that don't know, June is Torture Awareness month. I really recommend the "Anti-Torture Memos" on this site to everyone that's at all interested in the issue. It's a great resource, and the professors here should be really proud. The list of arguments articles here is really long, and so for Torture Awareness Month, I've I've linked to what I think are some of Balkinization's most important Memos from the last year or so. I hope people find them useful. We need all the help we can get.

# posted by

Disenchanted Dave : 8:47 AM

"Shredded our Constitution"?

Come on now. Such hyperbole is the reason your arguments don't have the resonance and forcefulness that they should.

It's your blog, so of course you can say what you want. But if all it takes to "shred our Constitution" is Bush authorizing harsh interrogation on Abu Zubaydah, then I'll just stop paying my taxes. The Constitution is shredded after all, so its worthless now right?

By the way, I do disagree with Bush's choice, but I think it is important for language to properly reflect the actual severity of the event. I'd love to see what you would have written about Abe Lincoln, FDR etc...

# posted by

Unknown : 9:17 AM

Dear Jacob:

As you probably know from reading this blog, Marty Lederman and I have been pointing out in a number of different posts that in order to justify the violation of laws banning torture and cruel, inhuman and degrading treament, the President has asserted that he has inherent authority under Article II to disregard federal laws limiting any actions he may take in his capacity as Commander-in-Chief. This argument was an important aspect of the infamous torture memo. The idea that the President may disregard federal law on his own say so undermines a basic principle of constitutionalism, not to mention his constitutional duties under Article II to take care that the laws be faithfully executed.

Moreover, as Marty and I have pointed out, this inherent power argument is one of the President's justifications for the NSA's domestic surveillance program; the President argues that he has inherent power under Article II to disregard FISA.

I don't think it's at all an exaggeration to point out that in order to engage in torture, the President has developed a theory that, in essence, makes him a law unto himself. This theory does indeed strike at the very heart of our Constitution. It is important that we say so, not only because torture and cruel, inhuman and degrading treatment of prisoners is evil, but because the way that President has justified breaking the law so that he may enage in these acts threatens our constitutional system of checks and balances.

# posted by

JB : 10:17 AM

Professor Balkin,

I do agree that President Bush has taken it upon himself to expand his powers under the rubric of fighting terrorism. However, throughout our history, there has been a constant ebb and flow of Presidential power. Generally, in war times (I'm including the War on Terror as a war, granted of course we don't have an actual declaration of war, etc.) the President does grab more power than technically authorized through statute and possibly the Constitution. However, this history itself informs the Constitutionality of the enterprise. For better or worse, the country accepts that in certain situations that the President is allowed to take it upon himself to act forcefully - to be the energetic executive - to combat threats to our security. I view his actions as being not all that different from past Presidents. Now, they may very well have been just as wrong as Bush. However, doesn't this very history of Presidential action inform the debate on the Constitutionality of Bush's actions?

And, yes, I do realize the slippery slope this line of argument raises. However, if it is an accurate assessment, then there is not too much to fear, because just as history provides excuse for Bush it also informs the response. We do need such active critics as yourself to remind us of what we are losing and the true dangers posed. If things do not abate by the end of the threat, then I will be right there with you - protesting at every step. In the mean time, my argument is just to remind that this is part of a historical, and arguably necessary process.

I am leaving out the harder issues: the possible length of the war on terror with the problems that poses for my argument and the torture of Abu Zubaydah (which does probably go beyond the steps taken by past Presidents).

# posted by

Unknown : 11:41 AM

Generally, in war times (I'm including the War on Terror as a war, granted of course we don't have an actual declaration of war, etc.) the President does grab more power than technically authorized through statute and possibly the Constitution. However, this history itself informs the Constitutionality of the enterprise. For better or worse, the country accepts that in certain situations that the President is allowed to take it upon himself to act forcefully - to be the energetic executive - to combat threats to our security. I view his actions as being not all that different from past Presidents.

I think that generalizing the point like this underplays the extremist nature of Bush's actions. As Prof. Balkin pointed out, Bush's claims fundamentally undercut the Constitutional system. He's claiming powers that the English denied to their kings; by no stretch of the imagination can a President exercise them.

It's more than that, however. Bush has claimed these expansive powers in order to act in ways which are morally reprehensible, ways our society has long rejected. Indefinite detention without charge? That was what led to the crisis of 1628 and the Petition of Right. Torture? It's not just that all civilized nations and people reject it as immoral, the English Common Law tradition rejected it hundreds of years ago:

"Sir John Fortescue Chiefe Justice of England, wrote his Book in commendation of the lawes of England; and therein preferreth the same for the government of this countrey before the Civill Law; and particularly that all tortures and torments of parties accused were directly against the Common Lawes of England, and showeth the inconvenience
thereof by fearfull example, to whom I refer you being worthy
your reading. So as there is no law to warrant tortures in this land, nor can they be justified by any prescription being so lately brought in.

And the Poet in describing the iniquity of Radamanthus, that cruell Judge of Hell, saith,

'Castigatque, auditque dolos, subigitque fateri.'

First, he punished before he heard, and when he had heard his deniall, he compelled the party accused by torture to confesse it. But far otherwise doth Almighty God proceed postqua´ reus diffamatus est. 1. Vocat. 2. Interrogat. 3. Judicat. To conclude this point, it [torture] is against Magna Carta, cap. 29. Nullus liber homo, &c. aliquo modo destruatur, nec super cum ibimus, nec super eum
mittemus, nisi per legale judicium parium suorum, aut per legem terrae. And accordingly all the said ancient Authors are against any paine, or torment to
be put or inflicted upon the prisoner before attainder, nor after attainder, but according to the judgement. And there is no one opinion in our Books, or judiciall Record (that we have seen and remember) for the maintenance of
tortures or torments, &c." Coke, Institutes, Ch. 2 Treason.

# posted by

Mark Field : 12:48 PM

"He's claiming powers that the English denied to their kings;"

And daily Congress claims powers the Americans denied their Legislature. So whoop dee doo. Wake me when liberals care about Constitutional limits on power that stop things they think are GOOD.

# posted by

Brett : 7:48 PM

And daily Congress claims powers the Americans denied their Legislature. So whoop dee doo. Wake me when liberals care about Constitutional limits on power that stop things they think are GOOD

So your position is that the Clean Water Act and torture are equally reprehensible?

# posted by

Mark Field : 8:54 PM

No, you're confusing "reprehensible" and "unconstitutional". The clean water act may be a very good idea indeed. That has nothing whatsoever to do with whether it's within Congress's legitimate authority to enact it.

But that's the point: I'll believe you care about the Constitution, as such, on the day you show some concern about whether something you LIKE is constitutional or not. So far as I can see, unconstitutionality only interests liberals when it can be used to stop something they oppose for entirely unrelated reasons. The Constitution could be converted into so much confetti, and you wouldn't give a damn, if it was done in a cause you liked.

# posted by

Brett : 10:11 PM

So sorry. Yes, all laws aren't the same. A pot dealer and murderer both might sneer at the law, but one really should concern us more. Darn our inconsistency!

But, let's take it to the next level. Let's take the sort of unconstitutional actions being committed. Clean Air Act. Now, of course, some might not think -- the recent wetland plurality aside -- that the law went beyond the Constitution.

Still, it is a sort of different calibier, for instance the democratic way it was carried forth (oh well, republican, since our agents did it) vs. the secret lying way Bush is doing things.

And, this blog goes further on why this sort of thing is particularly bad. But, that's just a taste.

# posted by

Joe : 10:29 PM

I'll believe you care about the Constitution, as such, on the day you show some concern about whether something you LIKE is constitutional or not. So far as I can see, unconstitutionality only interests liberals when it can be used to stop something they oppose for entirely unrelated reasons. The Constitution could be converted into so much confetti, and you wouldn't give a damn, if it was done in a cause you liked.

I'll assume you're consistent in wanting the Constitution enforced as you believe it was originally intended. I'll assume you apply that to the Executive Branch as well. If I'm right about your consistency, then when it comes to Bush's usurpations, we're on the same side. So why the friendly fire?

Joe is right -- whatever power Congress has "usurped", it has done so in full public view and subject to repeated elections. Its acts can be and are reviewed by the courts. When Congress asserts "legislative privilege" to hide its actions and prevent judicial review of them, then I'll consider the cases equivalent. When the results are equally abhorrent, then I'll consider the cases equally important.

# posted by

Mark Field : 10:57 PM

"So why the friendly fire?"

Because your concern about unconstitutionality is nothing but a pretense, which you'll abandon the moment the Constitution stands in the way of something you happen to want.

Congress, for instance, tries to enact abortion laws... Do you say, "What they heck, they're democratically elected, and they passed them out in the open!". No. So you don't REALLY think that's any excuse for unconstitutionality.

No, what you really think is that policies you like ought to be permitted regardless of their unconstitutionality, and policies you don't like ought to be prohibited regardless of whether they're constitutional.

I have no particular problem with engaging in alliances of convenience with people who arrive on the same side of a particular contraversy as a result of entirely different principles. I AM, however, highly allergic to people trying to con me into such alliances.

And that's all that's going on here. I'd actually be more persuaded if you'd ditch the blather about a Constitution you don't value, and said, "Torture is bad, let's stop it!" It would be less insulting.

# posted by

Brett : 5:06 PM

@Joseph Zipfel: If what Suskind reports is true, and most of Abu Zubaydah's information is worthless because he was saying anything at all to please his torturers, then one of the most serious consequences is the detention without charges or access to lawyers of Jose Padilla.

I consider that kind of treatment of a U.S. citizen, purely on the say-so of the president (backed by torture-extracted "identification"), to constitute a major shredding of the Constitution.

# posted by

Nell : 12:43 AM

Nell,

I'm not quite sure I understand your point. Are you implying that Padilla was tortured as well? Or just arguing that both cases seperately show a "shredding of our Constitution"?

I don't recall credible allegations that Padilla suffered water boarding or the like, but I may have missed them. I would be very troubled if Padilla was tortured as Abu Zubadyah was.

# posted by

Unknown : 1:02 PM

Perhaps following the link I provided would make my comment clearer, but for those unable or reluctant to do so: it is a Deborah Sontag story in the NYTimes from 2004 that reports that Abu Zubaydah was the source of the "dirty bomb" story, and that he ID'd a photo of Padilla when one was shown to him.

Now, given that AZ was saying all kinds of things under torture, and that very little information of any other kind linking Padilla to any terror planning, much less attacks, has been provided by the government, it is quite possible that Padilla is guilty of nothing at all but being an American Muslim in Pakistan.

However, the administration, quite clearly operating on the one percent doctrine in this case, decided that the alleged crime was so terrifying that habeas corpus would simply be suspended for this particular U.S. citizen. Once that is permitted by the courts of this country, no U.S. citizen has any protections.

If the "evidence" used to justify this withdrawal of fundamental constitutional protections can be statements obtained by torture, then truly, there are no limits on what the government can do.

Padilla was held in secret for months, denied access to lawyers for almost a year. His mother had no idea where he was for ten months. I have no idea whether he was tortured or not, but that is not my point. A U.S. citizen held in secret, with no charges and no access to the outside world, for months, by itself shreds the constitution.

The conditions in question are those most favorable to torture and mistreatment, but they are a grave injustice and a danger to our constitutional protections, if upheld, all by themselves.

Summing up:
Holding someone in secret and incommunicado without charges: serious violation of the constitution.

Doing so on the basis of someone else's statements made under torture: right out of freaking 1984!

I hope my point is clearer now.

# posted by

Nell : 3:51 PM