Thursday, December 4, 2008

The Rule of Law on Torture (more on impeachment)

The rule of law, according to the U.S. Department of State's publication, Principles of Democracy, which may be found at,, is defined as follows:

Rule of Law

Although no society or government system is problem-free, rule of law protects fundamental political, social, and economic rights and reminds us that tyranny and lawlessness are not the only alternatives.

• Rule of law means that no individual, president or private citizen, stands above law. Democratic governments exercise authority by way of law and are themselves subject to law's constraints.

• Laws should express the will of the people, not the whims of kings, dictators, military officials, religious leaders, or self-appointed political parties.

• Citizens in democracies are willing to obey the laws of their society, then, because they are submitting to their own rules and regulations. Justice is best achieved when the laws are established by the very people who must obey them.

• Under the rule of law, a system of strong, independent courts should have the power and authority, resources, and the prestige to hold government officials, even top leaders, accountable to the nation's laws and regulations.

• For this reason, judges should be well trained, professional, independent, and impartial. To serve their necessary role in the legal and political system, judges must be committed to the principles of democracy.

• The laws of a democracy may have many sources: written constitutions; statutes and regulations; religious and ethical teachings; and cultural traditions and practices. Regardless of origin the law should enshrine certain provisions to protect the rights and freedoms of citizens:

• Under the requirement of equal protection under the law, the law may not be uniquely applicable to any single individual or group.

• Citizens must be secure from arbitrary arrest and unreasonable search of their homes or the seizure of their personal property.

• Citizens charged with crimes are entitled to a speedy and public trial, along with the opportunity to confront and question their accusers. If convicted, they may not be subjected to cruel or unusual punishment.

• Citizens cannot be forced to testify against themselves. This principle protects citizens from coercion, abuse, or torture and greatly reduces the temptation of police to employ such measures.

The rule of law at an international level it includes those agreements or conventions that we have entered as a nation with other nations to prevent torture. The United States was a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was adopted by the United Nations General Assembly in 1984. The United States ratified the Convention against Torture in October 1994. The Convention entered into force for the United States on November 20, 1994.

The Convention Against Torture defines torture as any act by which:

severe pain or suffering, whether physical or mental; is intentionally inflicted on a person; for such purposes as:

* obtaining from him/her or a third person information or a confession

* punishing him/her for an act s/he or a third person has committed or is suspected of having committed

* intimidating or coercing him/her or a third person

* or for any reason based on discrimination of any kind;

when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

On October 21, 1998, Congress adopted the United States Policy with Respect to the Involuntary Return of Persons in Danger of Subjection to Torture as part of the Foreign Affairs Reform and Restructuring Act. According to Section (a): "[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States."

As a party to the Convention, the United States is required to submit periodic reports describing its compliance with the Convention to the Committee against Torture. Following are excerpts from the Initial Report the United States submitted to the Committee against Torture in 1999 (CAT/C/28/Add.5) that pertain to questions such as "Is torture a crime in the US?" and "What remedies are available?"

6. Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States. No 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 form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory. [p. 5]

11. .... Although there is no federal law criminalizing torture per se, any act falling within the Convention's definition of torture is clearly illegal and prosecutable everywhere in the country, for example as an assault or battery, murder or manslaughter, kidnapping or abduction, false arrest or imprisonment, sexual abuse, or violation of civil rights. [p. 6]

49. Torture has always been proscribed by the Eighth Amendment to the United States Constitution, which prohibits "cruel and unusual punishments." This Amendment is directly applicable to actions of the Federal Government and, through the Fourteenth Amendment, to those of the constituent states.... While the constitutional and statutory law of the individual states in some cases offers more extensive or more specific protections, the protections of the right to life and liberty, personal freedom and physical integrity found in the Fourth, Fifth and Eighth Amendments to the United States Constitution provide a nationwide standard of treatment beneath which no governmental entity may fall. The constitutional nature of this protection means that it applies to the actions of officials throughout the United States at all levels of government; all individuals enjoy protection under the Constitution, regardless of nationality or citizenship. [p. 13]

47. In 1994, Congress enacted a new federal law to implement the requirements of the Convention against Torture relating to acts of torture committed outside United States territory. This law, which is codified at 18 U.S.C. § 2340 et seq., extends United States criminal jurisdiction over any act of (or attempt to commit) torture outside the United States by a United States national or by an alleged offender present in the United States regardless of his or her nationality. The statute adopts the Convention?s definition of torture, consistent with the terms of United States ratification. It permits the criminal prosecution of alleged torturers in federal courts in specified circumstances. [p. 13]

Please note that this is written by the United States and makes specific allusion to the prohibitions in the Constitution of the United States against torture.

After the Second World War, the US participated in the International Military Tribunal. Japanese officers who had used 'waterboarding' on prisoners of war were adjudged guilty of war crimes, and some of them were executed. See

Unless we deny the atrocities at Abu Ghraib, or the fact that we have been shipping people to countries that practice torture, for 'interrogation' and 'extreme rendition,' or the continued abuse of prisoners and the violation of their rights at Guantanamo', the present administration has violated 'the rule of law.'

The duty of any citizen of the United States is to be educated about the system of laws, and the rule of law. We are not the only country in this planet, despite the attitudes of the present (and soon to be relieved of their duties, glory be to God) administration of thieves, liars, and war criminals.

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