Torturous Terms of Art

The matter of torture has been discussed over the past several years in connection with its use as a “tool” in the “Global War on Terror” or the “Overseas Contingency Operation” as it has now been called. Dick Cheney has been recently making rounds in an attempt to salvage some credibility and to fuel the partisan fire. Those he represents need to keep their justifications for torture at the forefront of the public mind and desire to gain political capital by implying that the Obama administration is faulty because it will not use this much-needed tool to “keep America safe”.  Even that may be disingenuous on Cheney’s part since Obama’s executive orders appear to provide ample loopholes of their own.

Unfortunately, the discussion of torture has revolved only around its alleged utility and which particular acts technically constitute torture. Perhaps we can blame the lawyers for this. When George Bush and Dick Cheney decided that torturing people was necessary, they sought counsel from government attorneys. They desired to find a legal loophole allowing them to employ extraordinary interrogation techniques against suspected terrorists. Historically, torture has been a very effective way to obtain guilty pleas from all manner of suspects whether or not they were in fact guilty. Who needs any evidence when you can use this wonderful means of getting people to implicate themselves and anyone else you desire? If we could only ask the women and men of Salem if the information they elicited under torture was true and reliable, we could dispense with some of these boring discussions.

Thanks to the intellectuals in media we are subjected to questions such as,  “Is waterboarding torture?” Perhaps there are some who can honestly claim that there is an objective and rational argument that it isn’t, but the CIA didn’t just use waterboarding. They also, according to some who were “renditioned”, sliced prisoners genitals with a scalpel. What other techniques were used without any public knowledge? We know that the military admitted there were at least 34 homocides during prisoner interrogations so it wouldn’t be unreasonable to conclude that waterboarding was the least of the torture techniques used on suspected terrorists. How much information does a dead prisoner volunteer anyway?

While an elite group of historically, morally and constitutionally-challenged lawyers may have drafted a few briefs, it was the Bush administration which sought this legal counsel. Clearly they weren’t interested in any arguments contrary to their plans. So we can’t merely blame lawyers for presenting torturous legal arguments in favor of almost-torture to “defend Amurikah.”

In spite of the obviously tyrannical nature of the Bush administration, the mainstream media acted as its unpaid PR firm by keeping the conversation focused on the minutiae of definitions. Waterboarding is torture though the name by which it was once commonly known has fallen out of favor. Perhaps it was sensitivity to WWII vets, tortured in this fashion, which brought about the new name. During their era the torture technique was called “The Water Cure”. Japanese practitioners of the water cure were convicted of torture and executed after WWII, so of what consequence is a morally-depraved lawyer or Vice President’s opinion that the practice is acceptable and legal?

However, the Bush administration didn’t just settle for a re-definition of torture. Persons caught up in their sadistic scheme were claimed to be, rather than persons, suspects or defendants, “enemy combatants” and detained on foreign soil. In their eyes, they could act outside the boundaries of the Constitution, in spite of their public oaths promising otherwise, because they had placed these prisoners in place where the Constitution did not apply.

They do have a legal precedent for this, no matter how morally flawed it may be. The Dred Scot decision was instrumental in re-defining the words “the people” from their obvious English meanings to a bastardized form of legalese which meant ‘citizen’. Justice Taney, clearly uncomfortable with the idea of a black man roaming the country while not on a leash, grasped at a straw and denied Dred Scot his freedom by claiming he was not a citizen. This decision had the convenient future legal justification for the government to ignore the Constitution when operating in foreign countries. The Dred Scot decision has never been overturned. In fact, it was re-affirmed only 28 years ago in US. v Verdugo-Urquidez wherein Justice Rehnquist claimed that “the people” was a “term of art” alluding to citizens, thus denying foreign defendants certain rights.

As bizarre as the logic was, Rehnquist couldn’t bring himself to render the term “person” to mean citizen:

The Fourth Amendment phrase “the people” seems to be a term of art used in select parts of the Constitution and contrasts with the words “person” and “accused” used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. (emphasis added)

This “failure” of Rehnquist was the Bush administration’s bane for which they required a final loophole.

The Bush administration had redefined certain techniques as being just shy of torture, made sure not to keep any suspect on US soil when possible and then, the pièce de résistance, refused to accuse them of any crimes. In this fashion they could deny them constitutionally-protected rights that even Rehnquist acknowledged were not limited to citizens including Habeus Corpus beause they weren’t “accused”. No rights are limited to mere citizens in actuality. As was stated in the Declaration of Independence, our rights are endowed by virtue of birth, not by legislative folly.

Had anyone in the media investigated the reasoning behind the fifth amendment’s addition to the constitution, the American public might not have had to suffer through these torturous terms of art. It was added to prevent the then-common practice of torture to coerce defendants into incriminating themselves.

The genesis of the fifth amendment coincides with the settling of Plymouth by the Puritans who sought asylum from a tyrannical British government. John Lilburne, a terrorist to the British government, was a Puritan and one of the most famous defendants subjected to the Star Chamber. Liburne was persecuted almost his entire life by the British government for his belief and advocation of the rights of man by birthright rather than government decree. His tenacity, in one case while publicly flogged he turned the ordeal into an anti-government rally, inspired his fellow Britons to nick-name him “Freeborn John.” He pushed for a written constitution in England and his drafts and final version were inspirations to the founding fathers. His importance with regard to the bill of rights and fifth amendment specifically have been acknowledged in several important Supreme Court decisions including the Miranda decision.

The practice of torture to extract confessions of criminal acts and even heresy, was commonplace during Lilburne’s time and even made its way to the North American continent. The constitution, which conferred no power to the federal government to engage in the practice and explicitly forbid it to do so by way of the fifth amendmnent, abolished not only torture but denied authority to compel a defendant to testify at all in his own trial.

Yet today, the media and a good number of politicians allegedly bound by oath to that same constitution, argue that utility and safety demand we allow our government to use ‘extraordinary means’ to coerce people into admitting guilt before they have even been charged with a crime. Laying aside any argument that certain coercive interrogation techniques are torture, the government has no authority to use any coercive means to extract a confession or incriminating testimony. Since all categories of coercion are forbidden, the argument over whether or not waterboarding is torture is rendered utterly moot.

The neocons have argued (and still do argue) that torture should be allowed in order to protect us all from “extremists”, but in their haste have failed to consider (either purposefully or accidentally) what might happen if they were themselves deemed “enemy combatants” or extremists by their own government.

Now that is bad enough to make one nauseus. However, when you consider the number of people tortured and imprisoned by the US government since 2003, without any possibility of legal recourse or release, it is hard not to conclude that those responsible, from the President to the morally deficient prison guards, need to have their roles immediately reversed. What they have wrought is criminal in nature and lesser criminals have reaped the death penalty. The people locked up in the various detention facilities deserve justice as much as any “citizen” of these United States but the current administration is apparently in no mood to serve up any justice but is perfectly willing to serve up more torturous terms of art.


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