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The Fifth Amendment to the United States Constitution states as follows:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; NOR SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
What is the purpose of torture other than to compel a witness to testify against himself? I can think of none. Once a prisoner refuses to cooperate and answer questions, he or she must be treated as a co-conspirator, it would seem to me. At that point, he or she has chosen sides, so to speak. He or she cannot be compelled to incriminate him- or herself. Thus, torture or even extreme interrogation techniques are unconstitutional.
Note that the relevant part of the Fifth Amendment applies to "any person." The right to a Grand Jury, presentment or indictment allows for military tribunals in actual service in time of War or public danger but only for "cases arising in the land or naval forces, or in the Militia, WHEN IN ACTUAL SERVICE. The protections against double jeopardy, self incrimination and takings without compensation are not subject to the qualifications of the first section. These latter protections apply to "any person" at any time -- citizen of the U.S. or not -- in the U.S. or not. The Fifth Amendment is pretty easy to read, it seems to me, and very, very clear on this point. No ifs, ands, or buts.
So I submit that the Fifth Amendment prohibits torture or extreme interrogation techniques used against any person, in or out of the military, citizen or not, from the get-go. Unless of course these "techniques" are just being used for the purpose of sadistic pleasure. (And that is a whole new ballgame.)
A candidate for attorney general who does not immediately respond to a question about torture by stating that he or she will ensure that all interrogation techniques used by any person under his authority will comply with the Fifth Amendment should be rejected immediately. The standard answer should be: As Attorney General, I will insure that all policies of the Department of Justice comply with the Constitution and, with regard to interrogation, specifically that they comply in every respect with the Fifth Amendment prohibition on compelling self-incrimination.
There is no other acceptable answer. There are no compromises. The Fifth Amendment does not just apply to Congress. It applies to the office of the president.
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