[Anyone] Stand Against Torture

[Thos Myers]

On Mon, 10 Mar 2008, Mike in Taos wrote:

>
> Can you imagine the torture that Mary JO Kopechne suffered when Ted Kennedy swam away from the car he drove off the bridge in Chappaquiddick leaving Mary Jo Kopechne to suffer a horrible death but I guess manslaughter is okay if your a Kennedy.
>


The following was true until bush vetoed anti-torture legislation last
Saturday:
"Q: What laws prohibit torture?

Torture is universally condemned, and whatever its actual practice, no
country publicly supports torture or opposes its eradication. The
prohibition against torture is well established under customary
international law as jus cogens; that is, it has the highest standing in
customary law and is so fundamental as to supercede all other treaties and
customary laws (except laws that are also jus cogens). Criminal acts that
are jus cogens are subject to universal jurisdiction, meaning that any
state can exercise its jurisdiction, regardless of where the crime took
place, the nationality of the perpetrator or the nationality of the
victim.

In 1948, following the horrific abuses of World War II, the General
Assembly of the United Nations inserted the prohibition against torture in
the landmark Universal Declaration of Human Rights. Article 5 states: "No
one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment." This ban on torture and other ill-treatment has
subsequently been incorporated into the extensive network of international
and regional human rights treaties. It is contained in Article 7 of the
International Covenant on Civil and Political Rights (ICCPR), ratified by
153 countries, including the United States in 1992, and in the Convention
against Torture or Other Cruel, Inhuman or Degrading Treatment or
Punishment (the Convention against Torture), ratified by 136 countries,
including the United States in 1994. It is also codified in the European
Convention for the Protection of Human Rights and Fundamental Freedoms,
the African Charter on Human and Peoples' Rights, and the American
Convention on Human Rights.

The prohibition against torture is also fundamental to humanitarian law
(also known as the laws of war), which governs the conduct of parties
during armed conflict. An important element of international humanitarian
law is the duty to protect the life, health and safety of civilians and
other noncombatants, including soldiers who are captured or who have laid
down their arms. Torture of such protected persons is absolutely
forbidden. Common Article 3 to the Geneva Conventions, for example, bans
"violence of life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture" as well as "outrages upon
personal dignity, in particular humiliating and degrading treatment." The
use of force to obtain information is specifically prohibited in Article
31 of the Fourth Geneva Convention: "No physical or moral coercion shall
be exercised against protected persons, in particular to obtain
information from them or from third parties."

According to the 1999 Initial Report of the United States to the U.N.
Committee against Torture, in the United States, the use of torture "is
categorically denounced as a matter of policy and as a tool of state
authorityNo official of the government, federal, state or local, civilian
or military, is authorized to commit or to instruct anyone else to commit
torture. Nor may any official condone or tolerate torture in any formEvery
act of torture within the meaning of the [Convention against Torture] is
illegal under existing federal and state law, and any individual who
commits such an act is subject to penal sanctions as specified in criminal
statutes."

Although no single provision of the U.S. Constitution expressly prohibits
torture as a means to extract information, secure a confession, punish for
an act committed, intimidate or coerce, or for any reason based on
discrimination, there is no question that torture violates rights
established by the Bill of Rights. The U.S. courts have located
constitutional protections against interrogations under torture in the
Fourth Amendment's right to be free of unreasonable search or seizure
(which encompasses the right not be abused by the police), the Fifth
Amendment's right against self-incrimination (which encompasses the right
to remain silent during interrogations), the Fifth and the Fourteenth
Amendments' guarantees of due process (ensuring fundamental fairness in
criminal justice system), and the Eighth Amendment's right to be free of
cruel or unusual punishment. In numerous cases, the U.S. Supreme Court has
condemned the use of force amounting to torture or other forms of ill
treatment during interrogations, including such practices as whipping,
slapping, depriving a victim of food, water, or sleep, keeping him naked
or in a small cell for prolonged periods, holding a gun to his head, or
threatening him with mob violence. Torture would also violate state
constitutions, whose provisions generally parallel the protections set
forth in the federal Bill of Rights.

Article 4 of the Convention against Torture obligates state parties to
ensure that all acts of torture are criminal offenses under domestic
legislation. Although there is no single federal law specifically
criminalizing torture, the United States has insisted that existing
federal and state laws render illegal any act falling with the Convention
against Torture's definition of torture. In the United States, most
criminal laws are state rather than federal. Although a few states have
laws addressing torture as such, each state has laws that criminalize
violence against persons (e.g. assault, rape), regardless of whether
committed by public officials or private individuals. In addition, states
typically have specific laws that criminalize acts by public officials
that constitute abuses of authority, "official oppression," or the
unlawful infliction of bodily injury. The principal federal law that would
apply to torture against detainees is 18 U.S.C. 242, which makes it a
criminal offense for any public official to willfully to deprive a person
of any right protected by the Constitution or laws of the United States."

http://www.hrw.org/press/2001/11/TortureQandA.htm
"