<html>
<body>
<dl><font size=3><br><br>
<dd>READ MONTHLY REVIEW</b>!
<<a href="http://monthlyreview.org/" eudora="autourl">
http://monthlyreview.org/</a>> <br><br>
<dd> 01/11/05 <br><br>
<dd>
<<a href="http://monthlyreview.org/mrpress.htm" eudora="autourl">
http://monthlyreview.org/mrpress.htm</a>> <br><br>
<br>
<dd>Acceptance of Torture in the United States<br>
<dd>by J. Soffiyah Elijah, Esq.* <br><br>
<dd>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
<<a href="http://www.nytimes.com/2005/10/25/politics/25detain.html" eudora="autourl">
http://www.nytimes.com/2005/10/25/politics/25detain.html</a>
> 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
<<a href="http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SP01977" eudora="autourl">
http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SP01977</a>:> to
the Department of Defense Appropriations Bill. The Senate voted
90-9
<<a href="http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=1&vote=00249" eudora="autourl">
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=1&vote=00249</a>
> 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)
<<a href="http://www.un.org/Overview/rights.html" eudora="autourl">
http://www.un.org/Overview/rights.html</a>> and declared it to be the
Universal Declaration of Human Rights
<<a href="http://www.unhchr.ch/udhr/index.htm" eudora="autourl">
http://www.unhchr.ch/udhr/index.htm</a>> . 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
<<a href="http://www.unhchr.ch/udhr/lang/eng.htm" eudora="autourl">
http://www.unhchr.ch/udhr/lang/eng.htm</a>> to the
Declaration states: <br><br>
<dl>
<dd>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, . . .
<br><br>
</dl>
<dd>The Declaration continued in Article 5
<<a href="http://www.unhchr.ch/udhr/lang/eng.htm" eudora="autourl">
http://www.unhchr.ch/udhr/lang/eng.htm</a>> 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 Clause
<<a href="http://caselaw.lp.findlaw.com/data/constitution/amendment14/" eudora="autourl">
http://caselaw.lp.findlaw.com/data/constitution/amendment14/</a>
> because, as Justice
<<a href="http://www.spartacus.schoolnet.co.uk/USAfrankfurter.htm" eudora="autourl">
http://www.spartacus.schoolnet.co.uk/USAfrankfurter.htm</a>
> Frankfurter
<<a href="http://www.oyez.org/oyez/resource/legal_entity/78/" eudora="autourl">
http://www.oyez.org/oyez/resource/legal_entity/78/</a>>
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
Negro."
<<a href="http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=us&vol=297&invol=278" eudora="autourl">
http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=us&vol=297&invol=278</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
<<a href="http://www.powells.com/biblio?isbn=0486434095" eudora="autourl">
http://www.powells.com/biblio?isbn=0486434095</a>> , 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
<<a href="http://www.hup.harvard.edu/catalog/BANDEA.html" eudora="autourl">
http://www.hup.harvard.edu/catalog/BANDEA.html</a>> were
regularly attended by thousands of onlookers
<<a href="http://www.geocities.com/lastpublichang/index.htm" eudora="autourl">
http://www.geocities.com/lastpublichang/index.htm</a>> .
By the end of the 17th Century all the colonies had adopted
variations of the Slave
<<a href="http://www.britannica.com/eb/article-9399807" eudora="autourl">
http://www.britannica.com/eb/article-9399807</a>> Codes
<<a href="http://www.loc.gov/exhibits/treasures/trm009.html" eudora="autourl">
http://www.loc.gov/exhibits/treasures/trm009.html</a>>
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
<<a href="http://www.gutenberg.org/browse/authors/w#a5765" eudora="autourl">
http://www.gutenberg.org/browse/authors/w#a5765</a>> were
a frequent occurrence as were maimings, castrations, and burnings.
These well-attended public gatherings
<<a href="http://withoutsanctuary.org/" eudora="autourl">
http://withoutsanctuary.org/</a>> 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
<<a href="http://hrw.org/english/docs/2005/10/03/usdom11821.htm" eudora="autourl">
http://hrw.org/english/docs/2005/10/03/usdom11821.htm</a>>
Jena
<<a href="http://www.iht.com/articles/2005/10/02/news/inmate.php" eudora="autourl">
http://www.iht.com/articles/2005/10/02/news/inmate.php</a>
> Correctional
<<a href="http://newstandardnews.net/content/index.cfm/items/2439" eudora="autourl">
http://newstandardnews.net/content/index.cfm/items/2439</a>
> Facility
<<a href="http://www.latimes.com/news/nationworld/nation/la-na-prisoners16oct16,0,2919609.story?coll=la-home-nation" eudora="autourl">
http://www.latimes.com/news/nationworld/nation/la-na-prisoners16oct16,0,2919609.story?coll=la-home-nation</a>
> 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
<<a href="http://www.naacpldf.org/content.aspx?article=696" eudora="autourl">
http://www.naacpldf.org/content.aspx?article=696</a>> and Human
Rights Watch
<<a href="http://www.hrw.org/english/docs/2005/10/05/usdom11826.htm" eudora="autourl">
http://www.hrw.org/english/docs/2005/10/05/usdom11826.htm</a>>
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
<<a href="http://neworleans.media.indypgh.org/uploads/2005/10/nopd_video.mov" eudora="autourl">
http://neworleans.media.indypgh.org/uploads/2005/10/nopd_video.mov</a>
> Davis
<<a href="http://www.zmag.org/content/showarticle.cfm?SectionID=72&ItemID=8995" eudora="autourl">
http://www.zmag.org/content/showarticle.cfm?SectionID=72&ItemID=8995</a>
> 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
<<a href="http://weblog.law.ucla.edu/crs/archives/2005/10/the_interameric.html" eudora="autourl">
http://weblog.law.ucla.edu/crs/archives/2005/10/the_interameric.html</a>
> .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. <br><br>
<dd>1 <#_ednref1> Rochin v. California
<<a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=342&invol=165" eudora="autourl">
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=342&invol=165</a>
> , 342 U.S. 165 (1952) 2 <#_ednref2> Rogers
v. Richmond
<<a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=365&invol=534" eudora="autourl">
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=365&invol=534</a>
> , 365 U.S. 534 (1961) 3 <#_ednref3> Brown v.
Mississippi
<<a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=297&invol=278" eudora="autourl">
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=297&invol=278</a>
> , 297 U.S. 278 (1936) <br>
<dd>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. <br>
<dd>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.
<br>
<dd>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. <br>
<br>
<dd>* <#_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.
<br>
<br>
</dl><br>
</font><x-sigsep><p></x-sigsep>
<font size=3 color="#FF0000">The Freedom Archives<br>
522 Valencia Street<br>
San Francisco, CA 94110<br>
(415) 863-9977<br>
</font><font size=3>
<a href="http://www.freedomarchives.org/" eudora="autourl">
www.freedomarchives.org</a></font></body>
</html>