The US Constitution on torture.

[Usrename]

From the http://www.usconstitution.net/const.html">U.S. Constitution:

Article. VI. - Debts, Supremacy, Oaths

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The http://www.hrweb.org/legal/cat.html">U.N. Convention Against Torture was ratified on http://www2.ohchr.org/english/bodies/ratification/9.htm">24 Oct 1986:

Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.

It cannot be more plain than that, can it?

I don't see how any argument can be made that it is possible to faithfully uphold the Constitution while ignoring claims of torture.

[Lint Head]

1. I think the word 'committee' in Article 12 should be 'committed'.

No biggy. Just a friendly aside. :hi:

[Usrename]

3. I think you are right.

:fistbump:

[spanone]

2. supreme law of the land....no waffling room there

[Igel]

4. Ignore, as in ignore, no.

Ignore, as in don't prosecute, sure.

The Constitution, federal laws, and treaties are the supreme law of the land. The UN Convention against torture stipulates that all allegations be submitted to the appropriate authorities for prosecution, using evidenciary standards no less than required for serious criminal matters.

This makes it a judgment call by some attorney general or his aides. Many serious criminal matters are not prosecuted: Some for political reasons, no doubt, but far more because there's insufficient evidence under federal evidenciary rules; or because there may be sufficient evidence, but it's a difficult case to make, and to try and fail precludes another trial. What's "reasonable" is defined by federal law, after all, and AGs aren't automata.

I don't know that you're doing this, I've noticed that a lot of people read "... all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land" as a free-standing clause and consequently ignore the bits that precede it and follow it. After all, semicolons in modern usage tend to separate full clauses, not bits and pieces (although we still have a style in which large units that are enumerated can be offset by semicolons, the final item in the list concluded with a comma). But such a reading requires that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof" be a full sentence. It is not; it is part of the subject of "shall be". Such a reading also overlooks the purpose of the clause, which is to assert federal dominance over states as long as such laws are in accordance with the Constitution: "... Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The first instance of "Constitution" must be the federal Constitution--"this Constitution"--while the second instance refers to the states' constitutions, "the Constitution (of any State) or Laws of any State to the Contrary ...".

This means that first one has to determine what "torture" is, to reach some sort of legal consensus, and that's proven to be difficult. Moreover, standards change over time while the law's text remains static, and then one has to negotiate whether the Constitution and other written texts are "living" (meaning that what they mean is subject to revision not by amendment, but by fiat) or whether we have to worry about "original" or "legislative" intent. We have to worry about whether a memo or order is intended to produce a given result, encouraged it, allowed it, or merely didn't forbid it.

[Usrename]

6. Sure, we can have a long discussion about what is reasonable.

Or more specifically, what is a reasonable ground to believe that an act of torture has been committed. But that isn't an argument that anyone is seriously making any more. Waterboarding is Torture, according to the incoming AG and everyone else in the incoming administration. See what at difference that makes? Waterboarding has been done and been admitted to, and it's torture.

Is anyone arguing that we don't have reasonable grounds to believe that waterboarding occurred, or that it isn't torture? If it's reasonable to believe this stuff is true, then there is no wiggle-room under the law. It shall be investigated. Period.

The "investigation" is mandatory in accordance with Article 12 but that particular article is silent on prosecution, IMHO. You would have to look at Articles 6 and 7 for detention and prosecution:

Article 6

1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts.

3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction.

Article 7

1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

As far as any interpretation of the phrase "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding" goes, the treaty becomes the law of the land, that is why the Senate must ratify all treaties by a super majority. It binds every judge in every state. A treaty may not do or exceed what the Congress is charged to do or what it is forbidden to do. A treaty remains subordinate, and Constitutional authority supersedes, overrules, and precludes any contrary treaty authority.

There is no contrary authority in the Constitution (especially in this article), or any existing law which I am aware of, that would preclude any torture investigation, or one that carves out an exception for the president to authorize torture in violation of the law. If there is, you will have to explain it to me.

[ThomWV]

5. "Shall Insure" pretty much sums it up. nt