Torture Undermines The Rule of Law

Presented without further comment:

Minutes before a major terrorism trial was about to begin, a federal judge barred prosecutors in Manhattan on Wednesday from using a key witness.

The government had acknowledged it learned about the witness from the defendant, Ahmed Khalfan Ghailani, while he was being interrogated while being held in a secret overseas jail run by the C.I.A.

The ruling by Judge Lewis A. Kaplan would seem to be a setback for the Obama administration’s goal of trying former detainees in civilian courts because it would limit the kinds of evidence that prosecutors can introduce.

Okay, I can’t resist. Setting to one side the right’s newfound ability to get past President Bush’s legacy by pretending that all of his errors ceased having any effect whatsoever once President Obama took office, in many ways, we still do pay for the former President’s mistakes. This is but the most salient (and irrefutable) example: some mistakes, you can’t take back. The rule of law, once injured, is difficult to ever fully repair. Before the country flirts with the idea of handing power back to a party that views real constitutional limits, like due process and trial-by-jury, as inconveniences, we should consider what that might mean, for the years to come and for our national integrity.



  1. Maybe you didn’t cover it, but could you explain the legal barrier that the Bush administration put in place that forbids the Obama administration from overturning? What legal hurdles force them to continue these terrible practices?

  2. Ah, to my knowledge Obama has discontinued the black site thing, and the torture thing. This guy was tortured while at a black site under Bush’s orders, while he was President.

    1. Right…but the US is still maintaining an extrajudicial priosner system, correct?

  3. Guantanamo, yes… :(

    Other than that, not really. The Bagram prison is legitimate under current law.

    1. So if after nearly two year we still have Guantanamo…what proof is there that Obama has really improved things? Most of the prisoners at the black sites were sent here so even thought they might no longer be tortured, they are still outside the US justice system and being held without trial. In light of that, why leave Dems in power either?

    2. Mike,
      I’ve long said that Mr. Obama is doing exactly the things that Mr. Bush did, and its reprehensible. Unlike Ames, I am not planning to continue carrying the Administration’s water just because I’m a Democrat. and I fully concede that the Democrats have a lot of making up to do if they want to prove that they can 1) govern and 2) deserve my vote.

      That said, I see no reason to toss them out, because there is no reasonable alternative. The Republican Pledge to America is hokum of the worst kind, especially on economic and budgetary matters, and considering that the current Republican leadership all supported Mr. Bush’s heinous assault on our civil liberties and the Constitution, I consider many of them to be de facto war criminals.

      And none of that has anything to do with the fact that today, in one federal court room at least, the whole torture construct (with it attendent and repugnant extra-judicial detention) got the legal slap it so richly deserves.

    3. I’m someone who will readily criticize Obama for his lack of movement on the civil liberties front, one I always bring up is the use of State Secrets and their backing down on some of the trial stuff. But…

      I don’t really blame the Guantanamo stuff on Obama, since it was congress and eventually the Democratic congressmen that stopped it from being closed.

      I guess I can round about blame Obama for not being….charismatic or forceful enough or something…but I think that’s giving him more influence than he’s had lately.

      1. Ames said, “Before the country flirts with the idea of handing power back to a party..”

        So the question is, how would Congressional Republicans be any worse than Congressional Democrats on this issue? Democrats have kept Guantanamo open and clearly aren’t completely enamored with the idea of civil liberties.

      2. I think if we ever want any push on the area of civil liberties, you have to end up on Democrat’s side. And they’ve been disappointing, but you usually have to side with the group that least gives lip service to your beliefs, rather than being actively opposed to them, while petitioning for improvements in those areas.

        But my point was you kept saying how Obama hasn’t done anything referencing Guantanamo….when I think that situation was out of his hands.

        1. But MY point is that Ames said electing GOP candidates would be a return to those policies..and the point is that we never really left them.

        2. That’s sort of a slimy concern-troll way of avoiding an obvious conclusion. Obama campaigns AGAINST such things, and if he still hasn’t completed them, the second derivative is at least (probably) positive. The GOP campaigns FOR them. We’ll see a retrenchment at the very least of torture policies.

          1. So basically what you are saying is that the Left gets a pass because they said some pretty things when they were campaigning. The fact hat Obama has not only continued extra-judicial detainment but also sought out a better legal framework for prolonged detention is supposed to be irrelevant because he promised some stuff in 2008?

          2. I don’t see anything offensive in the paragraph you quote. “Prolonged detention,” where consistent with the rule of law, is, well, consistent with the rule of law. He can’t and hasn’t asserted a right to hold detainees without access to lawyers or habeas.

            1. He has asserted the right to hold detainees without trial for future crimes INDEFINITIELY.

              “…“such detention is a hallmark of abusive systems that we have historically criticized around the world.” – Russ Feingold

              And more:

        3. I mean, it’s the inevitability of the two party system, if you want to budge policy in the direction you want, you’d still have to go with Democrats.

          As opposed to the group that will actively try to go in the direction that you don’t want, Republicans.

          No movement is still better than backwards movement.

          1. OK – couple of obvious points here:

            1) When you say, “…budge policy in the direction you want…” I have to ask who wants it to go in that direction? And define that direction? A positive one? A more liberal one? A ‘progressive one’? I think a lot of people want policies to go in a more conservative direction and that’s why they elect Republicans.

            2) I think we’ve learned that in regards to several issues, education coming to mind first, electing Democrats is NOT the way to get policy moved forward. When Michelle Rhee gets fired soon that will be pretty apparent.

          2. Not really obvious…

            1) The things that most liberals agree on, the things that Obama ran on (and partially won on), no torture, shutting down Guantanamo, fair trials for all, executive branch oversight, transparency. Things that even Republicans sometimes support (Also, quite a generalized jump to not specify any policy position and say that’s why people sometimes vote Republican, while assuming they do vote Republican).

            2) You know we’ll disagree on your second point so I’m unsure why you mentioned it. I’ve liked the policies that Obama has put forward on education, I am ecstatic that Obama seems more concerned with domestic issues, and glad that we’ve had some traction there. Infrastructure and health care are given attention, wall street reform. I’ve liked the new higher education policies, etc.

            Maybe I didn’t describe my original point well enough: My opinion is that things that some conservative policies, hurt this country, and I think that some liberal policies, could help this country, so even if they have a hard time doing it, I would always choose the Democrat to avoid damaging results (or just results I don’t like) and go for the chance for improvement or even the status quo if I must.

            I’m sure you think somewhat in the opposite direction. Like, if you were really passionate in your opposition to gay marriage. Even if neither a Republican or a Democrat would change policy that much, you would still go for the conservative, betting that you might get a small law in the direction you want as opposed to getting some policy in the direction you don’t want.

            1. Your last point is logical but doesn’t really apply to me anymore. i’ve grown increasingly tired of politics as a team sport. My voting strategy for the coming year is mostly about removing incumbents.

          3. I just thought that was how people voted.

            You vote for the people that at least says they will govern/vote/legislate in a way you think is best for the country, and then if you’re politically active, try to pressure it to actually happen.

  4. Pre-conviction torture undermines the rule of law, yes. Post-conviction, if the law stipulates that it happen then torture has no bearing on the rule of law. Not all torture is equal: that pre- and post- conviction distinction makes a universe of difference.

    1. The only difference is that pre-conviction torture violates due process, while post-conviction is cruel and unusual punishment. But they’re both incompatible with the rule of law, in the substantive sense of the concept.

      1. Violating due process is malum in se. Being cruel and unusual punishment (assuming for the sake of argument that a properly conducted proportionality analysis would conclude that’s what torture is) is only a malum prohibitum.

        1. That’s great, but we’re not talking about classification of conduct (and malus prohibitum et in se are in my opinion about as useful in that regard as a hammer made of silly putty, anyway – interesting to look at, but not much else), but about the rule of law, the substance of which is the protection of rights.

          So given that both due process and protection from cruel punishment are solid, established civil rights, torture is completely incompatible with the rule of law no matter when it happens.

          1. Yes, but one of the “civil rights” is an actual human right, whereas the other is solely a creation of contemptible law.

            1. I would direct your attention to Art. 5 of the UN Declaration of Human Rights: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

              1. Directing my attention to something I respect and regard as valid would probably work better. I have no respect for that document, nor do I regard it as an accurate list of human rights or a validly binding legal document.

                1. Well, of course it’s not binding, it’s just a declaration. It’s international customary law, though. But if I come up with something like a properly ratified treaty, such as the UN Convention Against Torture, you’ll just tell me it’s a “creation of law” again.

                  So tell me, if the UDHR isn’t good enough, and positive law isn’t good enough, which purely objective, metasocial source of human rights do you operate with?

                  1. Steve Jeffers · ·

                    … one that denies the tortured rights but extends them to torturers, who are seen as persecuted victims.

                    On that basis, I’m guessing ‘Christian’.

                    1. Thank you for your insightful and well-considered contribution. You must have spent a lot of time coming up with that.

                  2. I’m not certain what metasocial means, but if I’ve guessed right, I think the answer to your question is “none”. I don’t think the UDHR is purely objective, but it does have the characteristic that’s what I think metasocial means (“lots of people agree with it”).

                    As to “positive law isn’t good enough”, do you mean domestic or international law? Domestic positive law is binding (but I don’t think the 8th Amendment actually bans torture because I think for certain acts torture isn’t “cruel” punishment because it isn’t disproportionate), but if there’s no good reason for it (what I think about the 8th Amendment), violating it is only a bad thing because you broke a rule, not because the violating act is bad in and of itself – and usually that means getting rid of the rule is no problem (which is what I think we should do with the 8th Amendment.) International positive law is a promise to do something, but can be abrogated at will since it’s not even as binding as a contract. After all, the only enforcement mechanisms are war and trade embargoes, which means it really has nothing backing it besides voluntary consent of the governed – which can be withdrawn at any moment. (For the record, I do not consider customary international law to be law at all).

                    And Mr. Jeffers, I’m an atheist, not a Christian. As to the date, the past few centuries have had some definite positive changes in peoples’ conception of rights, such as the idea of equal rights and the idea of personal autonomy (freedom of speech, freedom of thought, freedom of sex, freedom from bondage for innocents, etc.). I think there have been definite negative changes in people’s thinking too, though, such that the majority of people treat things as rights that aren’t rights at all. Sometimes I think that’s just laughably meaningless (e.g., UDHR’s Article 15, “Everyone has the right to a nationality.”), but sometimes I think it’s a very bad thing (e.g. UDHR’s Article 5 or Article 25 Clause 1).

                2. Do you regard the U.S. Constitution as a valid and binding legal document? Because if you do, it says plainly that 1) we don’t punish without due process (and indefinite detention and torture to obtain informations both happen without due process); 2) that when the Presidnet signs treaties and the Senate ratified them they becom ethe highest law of the land (see here the U.N Convention Against Torture which both defines torture quite narrowly, and says it can not be used by any adopting state under any reason).

                  1. Philip, with regard to your point 1, I agree with you. That’s why I’ve never suggested that torture should be used without due process. My argument has only ever been that after due process has been given and a person’s been found guilty, for some severe crimes torture should be the sentence. I’ve never, and do not expect to ever, supported torture pre-conviction, such as torture as an interrogation method or confession-obtainer.

                    As to the Convention Against Torture, you’re correct. However, Article 31 specifically allows for a State Party to denounce the convention and withdraw. I believe the United States should do so.

                    Basically, my thoughts in a sentence: The United States does not torture, but sometimes it should, so its laws should allow for that.

              2. Steve Jeffers · ·

                Indeed. And I would direct him to the date, which is 2010, not 0210.

  5. Well, Steve, the problem is that when you make such distinctions as “X is a human right, but Y is not” or that “the majority of people treat things as rights that aren’t rights at all”, you muts obviously be doing so on the basis of some prior definition of what a human right is.

    There are usually two different sources for that kind of definition: Either a ‘social’ one, i.e. that the members of a certain polity agree that certain rights are indeed rights, or the ‘metasocial’ one, which draws on either natural or divine law to establish certain rights as “inalienable” or “self-evident” or similar.

    Now, the source of my confusion is that your obviously reject the social source, again cf. your “the majority of people” comment above. But any expression of natural law that I’m aware of (at least back to the 1689 British Bill of Rights) includes a ban on cruel and unusual punishments, which of course is also why the 8th Amendment exists.

    So what’s your definitional source here? Truthiness, Stephen Colbert-style? “Steve’s gut says so”?

    1. Oh, gotcha. Yeah, I was totally wrong about metasocial’s meaning.

      I like to think I use a very curtailed metasocial definition: to be a real human right, it must be a situational expression of the two rights that exist in the Hobbesian state of nature: the right of sovereignty over your own life, and the right to remove threats to your sovereignty over your own life. That means to be a human right, the candidate-right must be a specific application of the right to decision-making and self-control or the right to self-defense. So, freedom of speech is a right because it’s the choice-right applied to what you say.

      But then… maybe I’m not using a metasocial definition at all, since I believe rights are conditioned on good behavior and not inalienable. “All men are created equal, and endowed by dint of their existence with two inalienable-unless-they-rape-somebody-or-do-something-else-really-severe rights, those being liberty and self-defense” doesn’t have a very good ring to it, but is a fairly accurate summary of what I believe about rights.

      That may count as “Steve’s gut says so”, but there is a reason for what my gut says.

      Actually, right now my gut says I’m hungry.

%d bloggers like this: