I happen to have the founders right here ...

I happen to have the founders right here ...

by digby

Well, Juan Cole does.  In this post he foundersplains to the torture apologists why they are wrong when they say the constitution allows it:

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.

To me this is obviously correct just on an instinctual level. Freedom, liberty, justice individual rights, due process etc, etc.  Justice Scalia, however, takes issue with it, dancing on the head of a pin to say that the constitution only prohibits using torture as punishment not as a tool to extract confessions of information:

The interviewer asked, for example, what the U.S. Constitution says about torture. “We have laws against torture,” Scalia replied. “The Constitution says nothing whatever about torture. It speaks of punishment; ‘cruel and unusual’ punishments are forbidden.”

“So torture is forbidden, in that case?” the host asked. “If it’s imposed as a punishment, yes,” Scalia responded. “If you condemn someone who has committed a crime to be tortured, that would be unconstitutional.”

When the interview sought clarification, asking about interrogations, Scalia interrupted mid-question. Here’s his response in its entirety:

“We have never held that that’s contrary to the Constitution. And I don’t know what provision of the Constitution that would, that would contravene.

“Listen, I think it is very facile for people to say, ‘Oh, torture is terrible.’ You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person? I don’t think that’s so clear at all.

“And once again, it’s this sort of self-righteousness of European liberals who answer that question so readily and so easily. It’s not that easy a question.”

When the host noted that American liberals tend to agree with European liberals on the issue, Scalia added, “And American liberals too. Yes. But the Europeans are more self-righteous, I think.”

So the famous "originalist" thinks the founders were infallible except when they failed to understand that a question is hard. Good to know. (And yes, this Supreme Court justice has based his understanding of this issue entirely on "Jack Bauer's" dilemmas. A fictional character.)

I don't worship the founders by any means. But they did understand the propensity of government to abuse its police power. Even Supreme Court justices can fall prey to it.

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