[News] Acceptance of Torture in the US - Soffiyah Elijah

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Wed Nov 2 11:44:45 EST 2005

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Acceptance of Torture in the United  States
by J. Soffiyah Elijah, Esq.*

Without much examination of the concept, Americans are quick to  declare 
that they live in a civilized society. Indeed, many  Americans believe that 
their country is the most "civilized" country  in the world.  Without much 
digression on the arrogance of such  a belief, it is sufficient to say that 
at least the rest of the  world has serious doubts as to the accuracy of 
that position.   Those doubts deepen as the United States' Vice President, 
Dick  Cheney, takes the position that employees of the 
Central  Intelligence Agency (CIA) should be exempt 
<http://www.nytimes.com/2005/10/25/politics/25detain.html>   from proposed 
legislation that would bar the use of cruel and  degrading treatment of any 
prisoners in the custody of the United  States.  Senator John McCain, a 
Republican from Arizona, was  the principal sponsor of amendment  #1977 
<http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SP01977:>  to the Department 
of Defense Appropriations Bill. The  Senate voted 90-9 
in favor of the Amendment over the objection of the 
Bush  Administration.  Vice President Cheney tried repeatedly to  persuade 
Senator McCain to modify his proposal so that it would not  be a complete 
ban on inhumane treatment.  Last summer,  President Bush vowed that he 
would veto the measure and the Senate prepared for an override. The 
haunting images of the Abu Ghraib and  Guantanamo prisoners are still 
imbedded in the world psyche as  Cheney lobbies for permission to visit yet 
more torture around the  globe.  In 1948 the United Nations General 
Assembly adopted Resolution 217 A  (III) 
<http://www.un.org/Overview/rights.html> and declared it to be the 
Universal Declaration of  Human Rights 
<http://www.unhchr.ch/udhr/index.htm> . The General Assembly then called 
upon all member  nations to spread the concepts contained therein widely to 
ensure  that across the globe all humankind would be informed of this 
great  document. The second paragraph of the Preamble 
<http://www.unhchr.ch/udhr/lang/eng.htm>  to the  Declaration states:

Whereas disregard and contempt for human rights have resulted  in barbarous 
acts which have outraged the conscience of mankind,  and the advent of a 
world in which human beings shall enjoy  freedom of speech and belief and 
freedom from fear and want has  been proclaimed as the highest aspiration 
of the common people, .  . .

The Declaration continued in Article 5 
<http://www.unhchr.ch/udhr/lang/eng.htm>  to  mandate that "No one shall be 
subjected to torture or to cruel,  inhuman or degrading treatment or 
punishment." In 1948, the United States was a member of the United Nations 
and still is. It has not  officially denounced the Universal Declaration of 
Human Rights nor  rejected the tenets contained therein.   It should be 
difficult for anyone to comprehend a request by the  Vice President of the 
United States for permission to use  torture.  U.S. jurisprudence 
specifically prohibits the use of  coerced confessions and for good reason. 
The United States Supreme  Court has consistently recognized that coerced 
statements are  inherently unreliable and therefore inadmissible at 
trial.  Involuntary confessions are inadmissible under the Due  Process 
<http://caselaw.lp.findlaw.com/data/constitution/amendment14/>  because, as 
<http://www.spartacus.schoolnet.co.uk/USAfrankfurter.htm>   Frankfurter 
<http://www.oyez.org/oyez/resource/legal_entity/78/>   eloquently 
explained, they "offend the community's sense of fair  play and decency."1 
<#_edn1>   It is still the rule that "ours  is an accusatorial and not an 
inquisitional system."2 <#_edn2>   It is hard to  imagine a more unreliable 
statement than one that is obtained through the use of torture.  Perhaps 
Vice President Cheney longs for the "good old days" when  a deputy sheriff 
in Mississippi who had presided over the beatings  of the defendants 
arrogantly admitted that one had been whipped, "but  not too much for a 
The confessions extracted from those  defendants were suppressed by the 
Supreme Court in 1936.3 <#_edn3>    Is it not the deputy sheriff's 
mentality that permeates Cheney's  push to be able to torture detainees 
under the guise of fighting  terrorism?  Is Cheney unfamiliar with U.S. 
jurisprudence or the  Universal Declaration of Human Rights? Almost a 
century before the passing of the historical resolution  by the United 
Nations, a young utopian socialist and Russian  novelist, 
Fyodor  Dostoevsky <http://www.powells.com/biblio?isbn=0486434095> , 
prophetically reflected that "We can measure the  degree of civilization in 
a society by entering its prisons."4 <#_edn4>    Using Dostoevsky's 
magnifying glass to examine the progress made  in the United States towards 
developing a civilized society results  in some very disturbing 
findings.  The history of the U.S.  criminal (in)justice system is replete 
with examples of condoned  abuses of authority, torture, cruelty and 
inhumane treatment of the  accused and the convicted.  During the early 
colonial period of  U.S. history, common use was made of stocks, pillories, 
whipping  posts, ear clipping, branding, and ducking stools to 
punish  transgressors. All of these involved public display 
and  humiliation.  Ducking stools were designed and used 
almost  exclusively for women who failed to adhere to the strict 
social  restrictions place on them.  Public  executions 
<http://www.hup.harvard.edu/catalog/BANDEA.html>  were regularly attended 
by thousands  of onlookers 
<http://www.geocities.com/lastpublichang/index.htm> .   By the end of the 
17th Century all the colonies had adopted  variations of the Slave 
<http://www.britannica.com/eb/article-9399807>  Codes 
<http://www.loc.gov/exhibits/treasures/trm009.html>   which gave total 
physical, psychological, legal and emotional  control over the slave to the 
so-called master. Thus the "law"  permitted barbaric methods of punishment. 
Lynchings <http://www.gutenberg.org/browse/authors/w#a5765>   were a 
frequent occurrence as were maimings, castrations, and  burnings. These 
well-attended public  gatherings <http://withoutsanctuary.org/>  to witness 
the torture and killing of Black men and  women were festive occasions for 
the thousands who came to observe  these events.  The expression of utter 
disregard for the Bill of Rights and the  Universal Declaration of Human 
Rights by the country's leaders  leaves everyone at risk.  We recently 
witnessed the inhumane  treatment to which pretrial detainees in 
Louisiana's <http://hrw.org/english/docs/2005/10/03/usdom11821.htm>   Jena 
<http://www.iht.com/articles/2005/10/02/news/inmate.php>   Correctional 
<http://newstandardnews.net/content/index.cfm/items/2439>   Facility 
were subjected. They were evacuated from Jefferson Parish Prison due  to 
the devastation caused by Hurricane Katrina and then subjected to  a 
barrage of beatings and various types of cruelty. The widespread claims of 
abuse caused the NAACP Legal  Defense Fund 
<http://www.naacpldf.org/content.aspx?article=696> and Human  Rights Watch 
<http://www.hrw.org/english/docs/2005/10/05/usdom11826.htm>  to conduct an 
investigation consisting of hundreds  of interviews. Following their 
investigation these organizations  called upon the U.S. Department of 
Justice to immediately  investigate the mistreatment of the detainees at 
Jena. The overwhelming majority of the detainees are Black while most of 
the  guards are White. Many of the detainees have reported being  subjected 
to constant racial epithets and racist language.  In October 2005, 
television viewers relived the horror of Rodney  King's televised beating 
more than a decade earlier as they watched  the brutal beating of 64 year 
old Robert 
<http://neworleans.media.indypgh.org/uploads/2005/10/nopd_video.mov> Davis 
by Louisiana law enforcement personnel from New Orleans' 
French  Quarter.  Police brutality and torture in New Orleans is not a 
new  phenomenon. In 1973, a group of men and women alleged to be 
members  of the Black Panther Party were captured in New Orleans. Word 
of  their arrest quickly spread throughout the country. 
Representatives  from the police departments of Los Angeles, New York City, 
and San  Francisco rushed to New Orleans and interrogated several of 
the  arrestees in between torture sessions conducted by members of 
that  city's police department. The torture and interrogations lasted 
over  a period of 4-5 days.  Despite the fact that more than one  court has 
found that the statements extracted from the torture  victims were 
inadmissible in court, law enforcement personnel have  persisted in 
harassing them and their families for over thirty  years. From 1972 to 
1991, at least 135 arrestees in Chicago were  tortured by local police 
using methods eerily similar to those used  by the New Orleans police 
including beatings, suffocation, and the  use of electric shock probes 
place on the genitals.  The  horrors of the Chicago arrestees were recently 
reported before the  Inter-American  Commission on Human Rights 
<http://weblog.law.ucla.edu/crs/archives/2005/10/the_interameric.html> .5 
<#_edn5>   The cruelty of the Chicago  Police Department, like that of the 
New Orleans Police Department,  is commonplace.6 <#_edn6>   It was the 
brutality of the  Chicago Police Department and the resultant coerced 
confessions that were responsible in part for then Illinois Governor Ryan 
declaring a  moratorium on the death penalty, finding that too many 
convictions  had been obtained through questionable means.   A civilized 
society cannot tolerate violations of anyone's human  rights, no matter who 
the accused is or what the accusation may  be.  Indeed, a civilized society 
should ensure that the  so-called war on terrorism cannot be used as a ruse 
to ignore or manipulate the "community's sense of fair play and 
decency."   The Universal Declaration of Human Rights demands no less 
from  us.

1 <#_ednref1>   Rochin  v. California 
, 342 U.S. 165 (1952) 2 <#_ednref2>   Rogers  v. Richmond 
, 365 U.S. 534 (1961) 3 <#_ednref3>   Brown  v. Mississippi 
, 297 U.S. 278 (1936)
4 <#_ednref4>   The young novelist was uniquely placed to make this 
observation as  he had served nearly five years in a Siberian prison as a 
political  prisoner after the loosely knit political group with which he 
had affiliated was infiltrated by a special police agent. 
Originally  sentenced to death in 1849, Dostoevsky was successful in having 
his  sentence commuted to hard labor in a Siberian prison.
5 <#_ednref5>   That body noted that, sadly, the United States had not seen 
fit to  submit to the jurisdiction of that body and be guided its 
well  established international norms.
6 <#_ednref>  In  1969, its members collaborated with the local FBI to plan 
the  assassination of Mark Clark and 20 year old Fred Hampton, leaders 
of  the local chapter of the Black Panther Party for Self Defense. In a 
pre-dawn raid of their apartment Clark and Hampton were murdered as  they 
lay sleeping. Blueprints of their apartment were supplied by an  FBI 
cooperative, William O'Neal. O'Neal also placed barbiturates in  Hampton's 
meal the night before the assassination.

* <#_ednref*>   J. Soffiyah Elijah is Deputy Director of the Criminal 
Justice  Institute, Harvard Law School. The views expressed are solely  of 
the author and are in no way associated with Harvard Law School  or the 
Criminal Justice Institute.

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