Is the torture bill unconstitutional?

[Donald Ian Rankin]

At this stage, as far as I can see, whether or not legalising torture of people who haven't been tried or convicted of any offence is moral, sensible, workable or justifiable has ceased to be the issue. The only chance of it being struck down is by the Supreme court, and they won't (I hope) take any of those factors into account.

The crucial question is: "Does it conflict with anything in the US Constitution?"

Is there anything in the US constitution that prohibits it? Does the 8th ammendment prohibition of cruel and unusual punishment apply to non-citizens? I'm not an American, and my knowledge of consitutional law is negligable.

[Vincardog]

1. The constitutional issue is two fold 1) define Enemy Combatant

The law passed leaves that up to the (p)Resident.

2) Then there is habeas corpus

Section 9.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.




Get your constitution here:
<http://www.midnightbeach.com/jon/US-Constitution.htm >

[Donald Ian Rankin]

3. Surely the latter one is fairly self-evident?

Even if you accept Bush's contention that the War on Terror is a war, it's clearly not a rebellion or an invasion (unless "invasion" covers the US invading other places as well as them invading the US)?

Or is that not how it's interpreted?

[Vincardog]

10. invasion the public safety may require it. The reference to public safety

clearly applies to invasion of our shores. The framers clearly never envisioned the USA launching an illegal unprovoked war of aggression.

[wtmusic]

2. Yes.

USC Article IV:

"all Treaties made...under the Authority of the United States, shall be the supreme Law of the Land..."

The Geneva Conventions of 1949, a treaty to which the US is signatory, is clear about the treatment of POWs (Article 17):

"No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."

The Military Commissions Act of 2006 contravenes Article 17 in any number of different ways.

The only hurdle would be showing that the difference between a "detainee" and a "prisoner of war" is purely a semantic one, and it should be a relatively low hurdle to leap.

I don't believe the habeus corpus would clear SCOTUS, because the POWs are not US citizens and are not in the US.

[nradisic]

5. Yes...

It violates the 4th,5th,6th,8th,9th and 14th Amendments.

[AX10]

12. kick

[Donald Ian Rankin]

8. I'm less happy about this.

The US Supreme court doesn't have as much history of interpreting the Geneva convention as it does of the Constitution, so I'm not confident about how it will do it, especially post Roberts and Alito.

I was hoping that something like the 8th ammendment would apply, without need to resort to other documents :-(

[wtmusic]

9. It would be a first

as would applying the 8th:

"Also this year, the debate has been intense on the question of whether the Eighth Amendment applies to enemy combatants detained by the United States at Guantanamo Bay in Cuba.

To suppose it does would be to assume for the first time ever that enemy forces captured during a war are entitled to the same Bill of Rights protections as citizens in the criminal-justice system."

http://www.record-eagle.com/edits/know_your_rights/25eighth.htm

To me, the wording of Geneva is clearer. Is waterboarding unpleasant? What about sleep deprivation or induced hypothermia?

To call them "cruel and unusual" is a higher standard, and we're still left with the problem of whether it applies to foreign nationals outside the US.

[Eric J in MN]

4. The Consitution says that Treaties are the Supreme Law

The Military Tribunals bill says that however Bush interprets the treaty is automatically the correct interpretation.

There is a contradiction there.

http://www.usconstitution.net/const.html#A2Sec4

"...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land"

[longship]

6. Let me count the ways.

Others have cited them here. It is patently unconstitutional.

[StellaBlue]

7. Unless I am mistaken

The US Congress ratified the Geneva Convention, therefore is has the full force of US law. This is blatantly unconstitutional. On that and a variety of other counts.

But, then, the current resident of the Shite House landed there through extraconstitutional means, so... all bets are off.

[Patsy Stone]

11. Does the Pope wear a funny hat?

So many ways unconstitutional, it's not funny.