source stringclasses 9
values | text stringlengths 67 800 |
|---|---|
PSYOP 9.pdf | 74. L.S. VYGOTSKY, MIND IN SOCIETY: THE DEVELOPMENT OF HIGHER PSYCHOLOGICAL PRO-
CESSES (1978).
75. Memorandum from Stephen Bradbury, Principal Deputy Assistant Attorney General, Dep’t
of Justice Office of Legal Counsel, to John A. Rizzo, Acting Legal Counsel, Cent. Intelli-
gence Agency (July 20, 2007), available at h... |
PSYOP 9.pdf | alsecurity.org/intell/library/policy/na-
tional/olc_050510_bradbury_20pg.htm.
78. AIDING TORTURE, supra note 1.
79. Id.
80. Memorandum from Navy SERE School Training Specialist and SERE Coordinator to Officer
in Charge, After Action Report: Joint Task Force Guantanamo Bay Training Evolution (Jan.
15, 2003) [hereinafter... |
PSYOP 9.pdf | cedure
(Dec. 10, 2002), available at http://www.torturingdemocracy.org/documents/20021210.
pdf.
84. Dep’t of Defense, Camp Delta Standard Operating Procedures (March 23, 2003), available
at http://88.80.16.63/leak/gitmo-sop.pdf.
85. Id.
86. HRETM, supra note 25.
87. Navy Memorandum, supra note 80.
88. Id.
89. Id.
90. U... |
PSYOP 9.pdf | and
other accused terrorists will be tried in a civilian courtroom1 is certain to revive
the debate about the use of “waterboarding” to obtain confessions from him.2
KSM was subjected to waterboarding 183 times.3 While some will contend that
waterboarding is not torture,4 I have explained elsewhere why I agree with tho... |
PSYOP 9.pdf | ions
should present relatively easy cases for exclusion (especially in conventional
criminal trials), current jurisprudence leaves problematic “protection gaps” that
could arguably permit the introduction of torture-based confessions in trials and
other contexts.
This essay traces the most problematic “protection gap” ... |
PSYOP 9.pdf | er to avoid results
that are plainly inconsistent with the Supreme Court’s repudiation of the use of
a torture-based confession almost 75 years ago in the important case of Brown
v. Mississippi,8 notions of due process need to be interpreted more broadly,
consistent with Brown’s recognition of an absolute prohibition o... |
PSYOP 9.pdf | inees. American agents have
__________________________
M. Katherine B. Darmer is a professor at the Chapman University School of Law.
reclaiming the lessons of brown v. mississippi 19
repeatedly waterboarded suspects. Some suspects have died in custody. We
must reclaim a history that categorically rejects torture.
Tort... |
PSYOP 9.pdf | In Brown v. Mississippi the Court denounced torture, declaring that confessions
wrought through brutality are unreliable. That proposition should remain settled.
The Court in Brown also displayed a keen concern for judicial integrity, hinging
its finding of a due process violation on the use of the confession at trial.... |
PSYOP 9.pdf | ,
and institutional integrity was of central importance to the Brown Court. My focus
is not whether torture may have extracted reliable information in a particular case
(e.g., the case of KSM), but instead I focus on torture as a practice that has been
properly rejected as a matter of institutional integrity.
Following... |
PSYOP 9.pdf | ications in the post-9/11 era. Thus, I will discuss the Miranda
case and the post-Miranda cases in order to illuminate fissures that have left
suspects vulnerable to a return to the days when guilt could be determined on the
strength of torture-based confessions. While the terrorism cases present a myriad
of difficult ... |
PSYOP 9.pdf | randa v. Arizona, the Supreme Court devel-
oped a confessions jurisprudence under the Due Process Clause of the Fourteenth
Amendment,13 which provides that no State may “deprive any person of life,
liberty, or property, without due process of law.”14 (The parallel provision of the
2200 gguuiilldd pprraaccttiittiioonnee... |
PSYOP 9.pdf | s,16 including those obtained
through physical coercion.
A. Brown v. Mississippi and the condemnation of torture
In Brown v. Mississippi,17 the Court unequivocally condemned a state court’s
reliance on torture-based confessions as being inconsistent with the Due Process
Clause, overturning a conviction obtained though ... |
PSYOP 9.pdf | to the limb of a tree, and, having let him down, they
hung him again, and when he was let down the second time, and he still protested
his innocence, he was tied to a tree and whipped, and, still declining to accede to
the demands that he confess, he was finally released, and he returned with some
difficulty to his ho... |
PSYOP 9.pdf | ely whipped the defendant, declaring that he would continue the whipping
until he confessed, and the defendant then agreed to confess to such a statement as
the deputy would dictate, and he did so, after which he was delivered to jail.22
Accounts of “waterboarding” are also horrifying. As a United States aviator
subjec... |
PSYOP 9.pdf | t debates about the practice:
Inhalation brought the damp cloths tight against my nostrils, as if a huge wet paw
had been suddenly and annihilatingly clamped over my face. Unable to determine
whether I was breathing in or out, and flooded more with sheer panic than with
mere water, I triggered the pre-arranged signal a... |
PSYOP 9.pdf | upon,25 noting further that its decision
did not depend upon the application of the self-incrimination clause (which did
not yet apply to the states).26 The court explained that the self-incrimination
clause is directed to “the process . . . by which the accused may be called as a
witness and required to testify. Comp... |
PSYOP 9.pdf | ate in establishing its policy is the freedom of constitutional
government and is limited by the requirement of due process of law. Because a
state may dispense with a jury trial, it does not follow that it may substitute trial
by ordeal. The rack and torture chamber may not be substituted for the witness
stand.”28
The... |
PSYOP 9.pdf | significant the trial court both knew of how the confessions had been
obtained and that there was no other evidence upon which to base a conviction.
The ensuing conviction and sentence were thus “void for the want of the essential
elements of due process.”31
Reliability was a central concern of the Brown Court. As Laur... |
PSYOP 9.pdf | ch the
defendants were severely beaten and were threatened with continuous beatings
unless they confessed. Such police conduct is clearly wrong in itself, regardless
of whether any confession is used or even obtained. Consequently, defendants
like Brown, but unlike Miranda, can sue the police officers for violating the... |
PSYOP 9.pdf | duction. Brown is not just a case about
the wrongful extraction of a confession, but a case about the violence done to
due process by the later use of those confessions.34 This fact has implications for
current debates about bringing suspected terrorists to justice.
B. Reliability in the post-Brown era
In terms of the ... |
PSYOP 9.pdf | esumptively false evidence, but to prevent fundamental unfairness in
the use of evidence, whether true or false.”36 In Lisenba the Court affirmed the
conviction, finding that the conduct of law enforcement in obtaining a confession
was not “grave” enough to warrant reversal.
In most of the post-Brown cases, however, re... |
PSYOP 9.pdf | n Spano v. New York,37 for example, the Court analyzed psychological pres-
sures used on a suspect, suggesting that the methods were abhorrent beyond
any concern that the methods might yield unreliable confessions. It found a due
process violation when police ignored the defendant’s refusals to talk in a series
of inte... |
PSYOP 9.pdf | had any subsequent case approached “the
36 consecutive hours of questioning” at issue in an earlier case.42 In that case,
Spano’s will was “overborne by official pressure, fatigue and sympathy falsely
aroused.”43 In emphasizing Spano’s “overborne will,” Chief Justice Warren’s
uppermost concern did not appear to be “re... |
PSYOP 9.pdf | Supreme Court chided the trial court for admitting a confession
based on its reliability without focusing on whether law enforcement acted “such
as to overbear petitioner’s will to resist and bring about confessions not freely
self-determined—a question to be answered with complete disregard of whether
or not petitione... |
PSYOP 9.pdf | ntary.”
In writing about the history of confessions law, Steven Penney identifies
three themes that dominate the Court’s opinions: concerns with the unreliability
of confessions extracted under questionable circumstances,47 a desire to deter
abusive police practices,48 and a concern with protecting the autonomy of the
... |
PSYOP 9.pdf | ced by “bitter
divisions” as the Court struggled to answer the question of how much pressure
on a subject is “too much.”50 Importantly, however, the Court never abandoned
its condemnation of torture.
II. The problematic shift away from the essential
importance of reliability
A. The Self-Incrimination Clause and due pro... |
PSYOP 9.pdf | t no
one shall be required in “any criminal trial” to be a witness against him/herself,
the protections of the Fifth Amendment are triggered, in the custodial interroga-
tion context, only when there is a criminal trial. It does not apply in other contexts
and does not act as a “check” on abusive police conduct itself,... |
PSYOP 9.pdf | Martinez’s due process
rights, and the Ninth Circuit ultimately held that the facts indeed suggested a due
process violation:
The Fourteenth Amendment’s Due Process Clause protects individuals from state
action that either “shocks the conscience,” or interferes with rights “implicit in the
concept of ordered liberty.”... |
PSYOP 9.pdf | Martinez’s clearly established due process rights.53
The difference between the use of a confession at trial in derogation of the
Fifth Amendment and the wrongful extraction of a confession that might violate
the Due Process Clause but not the Self-Incrimination Clause is illustrated in
Justice Marshall’s dissenting op... |
PSYOP 9.pdf | of such an “exception” was
inconsistent with the underlying rationale of Miranda, which held that custodial
interrogation is inherently coercive (and is no less coercive when “emergency
questioning” might be justified). If there is a threat to the public safety, Marshall
agreed, the police should by all means question ... |
PSYOP 9.pdf | are free to interrogate suspects without advising them of their constitutional
rights. . . . If trickery is necessary to protect the public, then the police may trick
a suspect into confessing. While the Fourteenth Amendment sets limits on such
behavior, nothing in the Fifth Amendment or our decision in Miranda v. Ariz... |
PSYOP 9.pdf | tactics themselves.
2244 gguuiilldd pprraaccttiittiioonneerr reclaiming the lessons of brown v. mississippi 2255
The intersection of the Self-Incrimination and the Due Process Clauses yields
problematic “protection gaps” not only regarding possible mistreatment, but even
regarding conviction or imprisonment. Specifical... |
PSYOP 9.pdf | er or not
those statements are extracted by United States law enforcement officers or by
foreign agents in the terrorism context.57 Under an appropriately robust inter-
pretation of the Fifth Amendment’s prohibition of compelled self-incrimination,
waterboarded statements would be forbidden in a trial. Other interpreta... |
PSYOP 9.pdf | he time Miranda was decided, the Court was more concerned with psycho-
logical than physical intimidation and was struggling to simplify its confessions
jurisprudence, which had become tangled and unclear during the development
of the due process voluntariness test, post-Brown. Few cases since Brown have
dealt with ins... |
PSYOP 9.pdf | e in that case were responsible for no harsh treatment
of a suspect whatsoever. Rather, a suspect literally approached a police officer
on the street and said that he wanted to discuss a murder he had committed.
The officer gave the defendant Miranda warnings, but the suspect persisted in
his stated desire to confess, ... |
PSYOP 9.pdf | lematic from the perspective of ensuring that trials and trial-like
proceedings are not tainted by the use of unreliable evidence.
2266 gguuiilldd pprraaccttiittiioonneerr 2277
At a pretrial hearing in Connelly, a state psychiatrist testified that Connelly was
“suffering from chronic schizophrenia,” had experienced “co... |
PSYOP 9.pdf | ation depends upon a
finding of “coercive police activity,”64 which was not present in Connelly because
the defendant had walked up to an officer on the street to confess. The Court
emphasized that “coercive police misconduct” was the “catalyst” for the Court’s
decision in Brown v. Mississippi,65 where the brutal polic... |
PSYOP 9.pdf | ion that police conduct was oppressive, all have contained a substantial
element of coercive police conduct. Absent police conduct causally related to
the confession, there is simply no basis for concluding that any state actor has
deprived a criminal defendant of due process of law.”66
Focusing on the deterrence ratio... |
PSYOP 9.pdf | serted that “[t]he purpose of the excluding evidence
seized in violation of the Constitution is to substantially deter future violations
of the Constitution.”69 Because there was no misconduct of law enforcement to
deter in this case, the Court essentially found that to be the end of the inquiry.
In his dissenting opin... |
PSYOP 9.pdf | mental illness. The trial court made no findings concerning
the reliability of Mr. Connelly’s involuntary confession, since it believed that
the confession was excludable on the basis of involuntariness. However, the
2266 gguuiilldd pprraaccttiittiioonneerr reclaiming the lessons of brown v. mississippi 2277
overwhelm... |
PSYOP 9.pdf | iable confession.71
As I have argued elsewhere, the majority’s almost exclusive focus on deterrable
police misconduct leaves suspects vulnerable to having confessions introduced
against them if those confessions were extracted by, for example, foreign agents
over whom the United States has no control. But, importantly,... |
PSYOP 9.pdf | confession’s “use” that violated
due process.72
To be sure, the conduct of the police officers in Connelly appears to be above
reproach and dramatically different than the abusive conduct of the Brown law
enforcement officers. But it is an overly narrow reading of Brown to suggest that
that was just a case about “misc... |
PSYOP 9.pdf | A close reading of Brown reveals that the Court
seemed particularly concerned that a judge would participate in a “pretense of a
trial” that relied upon such evidence. As Mark Godsey has pointed out regard-
ing Connelly, “[i]n holding that there was no ‘state action’ in the case, because
the officer did nothing to ind... |
PSYOP 9.pdf | nson v.
Leesville Concrete Co.,75 for example, the Court held that a private litigant’s
exercise of racially discriminatory peremptory strikes against jurors amounted to
state action because it arose in the context of a trial in which even private litigants
act pursuant to state rules and procedures. If a private litig... |
PSYOP 9.pdf | incompetent defendants. I believe there are
troubling implications in the terrorism context, as well, and that the case results
in “protection gaps” for terrorism suspects.
III. Implications of Historic Jurisprudence in the Terrorist Cases
A. Confessions Obtained by U.S. Agents
1. Conventional Criminal Trials
The annou... |
PSYOP 9.pdf | lsewhere that Miranda both over-protects and under-protects in the terror-
ism context, and have argued that terrorism suspects should not have the benefit
of Miranda warnings.78 Even leaving aside the Court’s Miranda jurisprudence,
however, a confession obtained by waterboarding at the hands of United States
agents fa... |
PSYOP 9.pdf | y. This question, in turn, is complicated by the fact that former
Administration lawyers wrote lengthy memoranda seeking to justify tactics such
as waterboarding for particular detainees.79 Most notoriously, the Bybee-Yoo
Torture and Power Memorandum (“BYTAP”) opined that an interrogation method
would not constitute “t... |
PSYOP 9.pdf | Administration legal memoranda specifically permitted waterboard-
ing, including that used against KSM.82 If agents used waterboarding in “good
faith” reliance upon legal memoranda, was there “misconduct” to “deter” under
the rationale of Connelly? Connelly’s narrow focus on the lack of “wrongdo-
ing” by law enforcemen... |
PSYOP 9.pdf | at from other civil
liberties positions relevant to the War on Terror since the election. Moreover,
fundamental human rights protections should not be subject to the vagaries of
who inhabits the White House. The strong message of Brown—that a trial lacks
integrity if it relies in any way upon torture—is an enduring les... |
PSYOP 9.pdf | to ban “torture,” again,
United States agents could plausibly argue that they understood waterboarding
not to constitute torture. The MCA includes a “good-faith defense” that applies
retroactively to cover the period between September 11, 2001 and the passage
of the Detainee Treatment Act of 2005 (“DTA”).85 Moreover, ... |
PSYOP 9.pdf | , its anti-torture provision applies
only to future CSRTs, not to those held before the passage of the Act.89 The DTA
bans interrogation techniques that are not authorized by the Army Field Manual
(which prohibits waterboarding) but it does not ban other disputed techniques,
such as “forced standing.”90 Linda Keller ha... |
PSYOP 9.pdf | essions Obtained by Foreign Agents
Connelly has even more dire implications for the use of confessions obtained
by foreign agents against whom the United States exercises no control. Connelly’s
focus on deterrence and deconstitutionalization of reliability means that a tortured
confession obtained abroad by foreign age... |
PSYOP 9.pdf | ring, and
arguably such conduct could run afoul even of Connelly’s narrow view of due
process (although questions of “good faith” outlined above would still apply).
Where confessions are obtained with no involvement by U.S. agents, however,
Connelly would suggest that confessions could be used despite unreliability. Th... |
PSYOP 9.pdf | ment, but the systematic offense
to due process wrought by the reliance on torture at the “pretense” of a trial.
After 2001, we are in danger of failing the lessons of Brown. A more robust
interpretation of due process, with a focus on both reliability of confessions and
the integrity of judicial and quasi-judicial pro... |
PSYOP 9.pdf | As He Awaits Stage in New York, N.Y.
TIMES A1, A22 (Nov. 15, 2009).
3. Id. at A22.
4. Cf. id. (noting that Attorney General Eric H. Holder Jr. has described the “near-drowning”
technique as “torture” but that advocates have said that C.I.A. methods “produced a trove of
information”).
5. See M. Katherine B. Darmer, Wat... |
PSYOP 9.pdf | Age of
Terrorism, 12 CORNELL J. L. & PUB. POL’Y 319, 354-372 (2003) (suggesting implications of
post-Miranda due process jurisprudence in terrorist cases); Mark Godsey, The New Frontier
of Constitutional Confession Law – The International Arena: Exploring the Admissibility
of Confessions Taken by U.S. Investigators fro... |
PSYOP 9.pdf | fety and the Fifth Amendment, 68 Brook. L. Rev. 241, 264-68
(2002) and Darmer, supra note 7, at 342-45.
12. Portions of this section are adapted from Darmer, supra note 7, at 329-30, 334-37.
13. In one significant nineteenth century decision, Bram v. United States, 168 U.S. 532 (1987),
the Court addressed the admission... |
PSYOP 9.pdf | a New Miranda Exception
Abroad, 51 DUKE L. J. 1703, 1715 (2002).
14. U.S. Const. amend. XIV; see Dickerson v. United States, 530 U.S. 428, 433 (2000) (explaining
that “notions of due process” prohibited coerced confessions before Miranda); Michigan v.
Tucker, 417 U.S. 433, 441 (1974) (“In state cases the Court applied... |
PSYOP 9.pdf | Miranda, 70 TUL. L. REV. 2195, 2196 (1996) (stating that due process had a
“constitutional reign of thirty years”).
15. Blackburn v. Alabama, 361 U.S. 199, 207 (1960).
16. See Welsh S. White, What Is an Involuntary Confession Now?, 50 RUTGERS L. REV. 2001,
2009–14 (1998). Another value was ensuring that police methods... |
PSYOP 9.pdf | introduced who denied
it”).
22. 297 U.S. at 281-82 (quoting dissenting opinion from state court decision, 161 So. 465, 470-
71).
23. Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45
COLUM. J. TRANSNATL’L LAW 468, 476 (quoting Excerpts from testimony of Cpt. Chase Jay
Nielsen, Tria... |
PSYOP 9.pdf | 436 (1966).
27. Brown, 297 U.S. at 285.
28. Id. at 285-86.
3322 gguuiilldd pprraaccttiittiioonneerr 3333
29. Id. at 286.
30. Id. at 286.
31. Id. at 287.
32. Laurie Magid, Deceptive Police Interrogation Practices: How Far is Too Far?, 99 MICH.
L. REV. 1168, 1173 (2001).
33. Id. at 933-34 (citations omitted).
34. Cf. Ar... |
PSYOP 9.pdf | after a close childhood friend, who was then attending the police academy,
falsely told Spano that Spano’s situation had gotten the friend “in a lot of trouble” and that he
was concerned for the financial welfare of himself, his pregnant wife, and his three children.
Id. at 319. The “friend” prevailed upon Spano on th... |
PSYOP 9.pdf | 36).
42. Spano, 360 U.S. at 321 (citing Ashcraft v. Tennessee, 322 U.S. 143 (1944). For a discussion
of the Ashcraft decision, see Darmer, supra note 7, at 330-31. In Spano, Chief Justice Warren
noted that the more “sophisticated” methods being used currently to “extract confessions”
only make more difficult the Court’... |
PSYOP 9.pdf | en pressure is “unfair.” Cf.
id. (noting evolution of definition of “unfair pressure” in thirty years leading up to 1966).
45. 365 U.S. 534 (1961).
46. Id. at 544.
47. Steven Penney, Theories of Confession Admissibility: A Historical View, 25 AM. J. CRIM.
L. 310 (1998). But see Colorado v. Connelly, 479 U.S. 157 (1986)... |
PSYOP 9.pdf | ensive police practices.”).
49. See Penney, supra note 47, at 313. Penney argues forcefully that the third concern, which
he refers to as the “self-determination theory,” is “morally suspect” because “the idea that
criminal suspects should have an intrinsic, deontological right to silence fails to accord with
widely-he... |
PSYOP 9.pdf | ir. 2003). Prior to the Supreme Court’s
holding in Chavez, 538 U.S. 760, the Ninth Circuit had held that Martinez also had a viable
Fifth Amendment claim. For a further discussion, see Darmer, Confessions Law in an Age
of Terrorism, supra note 7, at 349-51.
54. 467 U.S. 649 (1984).
55. Id. at 656.
56. Id. at 686 (Marsh... |
PSYOP 9.pdf | e
on a suspect to become a ‘witness’ against himself”).
59. Darmer, supra note 7, at 357; see also generally id. at 357-360 (discussing use of due process
test post-Miranda).
60. 479 U.S. 157 (1986).
61. See id. at 160-61. As pointed out in the dissent, the record was “barren” of any corroboration
of Connelly’s confess... |
PSYOP 9.pdf | Id. at 165-67.
68. See id. at 167.
69. Id. at 167.
70. See id. at 176 (Brennan, J., dissenting). Justice Marshall joined Justice Brennan’s dissent.
71. Id. at 183 (Brennan, J., dissenting).
72. See notes 30-31, supra and accompanying text.
73. Lawrence Herman, The Unexplained Relationship Between the Privilege Against ... |
PSYOP 9.pdf | Darmer,
Miranda Warnings, Torture, the Right to Counsel and the War on Terror, 10 CHAP. L. REV.
631, 642 (2007) (arguing for broad application of “public safety” exception to Miranda in
terrorism cases).
34 guild practitioner
79. SeeDarmer, supra note 5.
80. BYTAP Memo in CIVIL LIBERTIES VS. NATIONAL SECURITY IN A POS... |
PSYOP 9.pdf | 5, 751 (2007). The DTA amended the MCA. Id.
86. Darmer, supra note 78, at 651-52; see also Keller, supra note 85, at 751 (further explicating
provision of the MCA).
87. See Darmer, supra note 78, at 651.
88. Keller, supra note 85, at 749.
89. Darmer, supra note 78, at 651 and n.118.
90. Keller, supra note 85, at 749-50... |
PSYOP 9.pdf | t, Suite 922, New York, NY 10038
email: nlgno@nlg.org
web: www.nlg.org
MICHAEL BRYANT
AMERICA’S SPECIAL
PATH: U.S. TORTURE IN
HISTORICAL PERSPECTIVE
Torture . . . is a plague infecting our whole era.
—Jean Paul Sartre
Torture is at the deadly heart of national security.
—Mark Danner
. . . if this Nation is to remain tr... |
PSYOP 9.pdf | e falling of the dusk,”* seems especially pertinent to countries as they
reflect on their history of human rights abuse. Once a nation accepts the historical
truth of its crimes, it is a natural step to compare them with the misdeeds of other
countries and other eras in search of the unique qualities (if such can be pr... |
PSYOP 9.pdf | tions
of state power in 20th century history or prove the uniqueness of the German
experience. We might conduct a similar inquiry into the program of “enhanced
interrogation” carried out by the Bush Administration between 2002 and 2004 by
posing the following questions: Was the American program comparable to other
case... |
PSYOP 9.pdf | tity.3 The thesis of this essay is that American torture, while
* Hegel introduced this quote in The Philosophy of Right.
** For reasons of economy, this essay will focus on torture chiefly within European history.
__________________________
Michael Bryant is an Assistant Professor of Legal Studies at Bryant University... |
PSYOP 9.pdf | s an affinity with earlier forms of
official torture. Constructing a category of persons stripped of legal protection
has been exceedingly useful for torture regimes of the 20th century in curtailing
rights under domestic and international law—particularly the totalitarian states of
Nazi Germany and Stalin’s USSR. The ... |
PSYOP 9.pdf | ity to flense designated persons of legal
protection, leading to their torture by national security agents.5
However, American torture during the “Global War on Terror” presents
a characteristic that distinguishes it from previous forms. Unlike totalitarian
law and the French army in Algeria, the Bush Administration so... |
PSYOP 9.pdf |
the restrictions of U.S. domestic and international humanitarian law, the Bush
Administration overturned a trend of extending legal protections and immunities
reaching back to the Enlightenment. This, it will be argued, is the special path
of American torture.
I. Official torture from the Romans to the Age of Enlighte... |
PSYOP 9.pdf | urt proceed-
ings. This second meaning of torture is important because the American program
employed torture as an instrument of intelligence gathering, allegedly to preempt
future terrorist attacks or discover terrorist accomplices.8
The roots of torture are deeply entwined with Western history. For the Greeks,
tortur... |
PSYOP 9.pdf | ror created an
exception to facilitate the torture of free Romans. The exception arose whenever
the emperor declared a state of emergency. In effect, the Romans forged what the
Roman historian Tacitus called a “new jurisprudence”—a set of extraordinary
procedures to address the crime of maiestas (an offense against the... |
PSYOP 9.pdf | disputes within
the Germanic kingdoms that superseded the western half of the Roman Empire.
This changed by the High Middle Ages, when the practice re-entered Medieval
criminal procedure. The recrudescence of torture was due to several factors, in-
cluding the abolition of trial by ordeal in 1215, the late 11th century... |
PSYOP 9.pdf | means—the
testimony of at least two eyewitnesses or the confession of the accused. Given
the unlikelihood of multiple witnesses to a crime, confession became the prime
mode of conviction for serious offenses. (By the 14th century, confession had
received its lofty title of “the queen of proofs.”) When the accused decl... |
PSYOP 9.pdf | rmed of the government’s case.
Torture was not allowed in ordinary procedure. Some types of cases, however,
were considered especially odious, hence inappropriate for the relaxed standards of
ordinary procedure.13 In such cases the French authorities turned to extraordinary
procedure, in which the rights afforded the a... |
PSYOP 9.pdf | oath-helping.
3388 gguuiilldd pprraaccttiittiioonneerr 3399
during the findings stage of the trial, as the inquisitorial judge gathered evidence
on which to base his verdict.14
Torture as a tool for securing confessions and generating evidence continued
until the 18th century, when it came under scorching criticism by ... |
PSYOP 9.pdf | o secure a confession.
Lacking a motive to torture, the practice simply shrivelled away.16 Whatever the
explanation, whether purely moral, purely juridical, or a synergistic effect of both,
torture had disappeared from European law and society by the 19th century.
II. The return of torture: the 20th century
Experts pro... |
PSYOP 9.pdf | ight have been, neither Vautrin nor Javert ever imagined
that they had the right to torture a suspect.17
In the 20th century, however, torture reappeared in the very midst of modern
and modernizing societies. According to one scholar, Alec Mellor, torture re-
entered Western history through two portals: the rise of tot... |
PSYOP 9.pdf | ration of torture by the demo-
cratic national security state. Through close examination of these representative
cases, we will erect a framework in which an answer to the question about the
singularity of American torture may be found.
1. The theory underlying torture in totalitarian law:
Arendt’s “objective enemy”
As... |
PSYOP 9.pdf | grave impli-
cations for criminal procedure, civil liberties, and the resort to torture. Because
3388 gguuiilldd pprraaccttiittiioonneerr america’s special path: u.s. torture in historical perspective 3399
the totalitarian state asserts its unconditional power to allocate rights, it is able
to construct a category of c... |
PSYOP 9.pdf | ct itself from persons who would do it harm. Typically,
such persons commit an injurious act defined by the society as a crime. The de-
nomination of an action as a crime is a “speech act” in the Austinian sense: it sets
in motion a train of real-world events, from the arrest, charging, and prosecution
of the offender ... |
PSYOP 9.pdf | “carriers of tendencies.”20 This distinction between the suspect and the
objective enemy enables the arrest and persecution of people who have committed
no discernible offense. An administrative law scholar of the Nazi era, Theodor
Maunz, succinctly expressed the idea of the objective enemy:
By eliminating dangerous p... |
PSYOP 9.pdf | ncies.
Arendt argues that the suspect/objective enemy binary has an important coun-
terpart in totalitarian criminal law—the contrast between the “suspected offense”
and the “possible crime.” Because objective enemies are bearers of dangerous
tendencies, they enter the realm of the “possible” crime (as opposed to consu... |
PSYOP 9.pdf | has been committed.”22 An
immediate obstacle to proceeding against such persons is the equality principle of
Enlightenment jurisprudence, codified, for example, in Article 109 of the Weimar
Constitution, which stipulated the general equality of all citizens before the law.
4400 gguuiilldd pprraaccttiittiioonneerr 4411
... |
PSYOP 9.pdf | 1933 to engineer
the declaration of an emergency based on an alleged plot by Communists to
overthrow the government.23 The German President von Hindenburg, convinced
by the Nazis that the state faced imminent peril, suspended the Weimar Constitu-
tion as Article 48 allowed in such circumstances, but only until the eme... |
PSYOP 9.pdf | nequality.
The bramble-strewn path to persecution was bulldozed, and the way now lay
open to torturing the state’s objective enemies.26
Vilified by the Nazis as “weak” and “liberalistic,” the principle of legal equal-
ity likewise found cold comfort in Stalin’s USSR. The Soviet Code of Criminal
Procedure (1923–24), sec... |
PSYOP 9.pdf | telegram from Stalin to the People’s Commissariat for the Interior
from January 1939 conveys the essence of totalitarian torture in its disdain for
the principle of equality:
It is known that all bourgeois intelligence services use methods of physical influ-
ence against the representatives of the Socialist proletaria... |
PSYOP 9.pdf | people” to whom Stalin refers were,
in fact, innocent of wrongdoing. Nonetheless, exceptional circumstances required
and legitimated their torture—not because they committed antisocial acts, but
because of their membership in a group considered dangerous by the state.
In both Hitler’s Germany and Stalin’s USSR, a stat... |
PSYOP 9.pdf | y suspending the principle of legal equality.
In this way, what Nazi jurists like Carl Schmitt derided as the “abstract equality”
of liberalism was redefined in favor of “concrete equality,” or equality based upon
group characteristics like racial purity or political orthodoxy. As the German
historian Diemut Majer has ... |
PSYOP 9.pdf | under Stalin were multitudinous, far exceeding the scope of this essay. The es-
sential point here is that torture became an official policy of police interrogation
in both regimes, and in each case it targeted objective enemies. From the onset
of the Nazi government, a pattern quickly emerged of top-echelon government... |
PSYOP 9.pdf | tler’s intervention to promote police torture was sometimes more
direct, as in the case of an alleged child murderer whom he personally ordered
tortured into making a confession. In 1937 the German judiciary approached the
Gestapo about its interrogation techniques, not to object to them but to plead for
their regulari... |
PSYOP 9.pdf | ld (and frequently did) autho-
rize torture retroactively. In addition to beating, Nazi interrogators deprived their
suspects of food, light, and sleep. Concerned that mainstream criminal justice
officials would hesitate to apply harsh tactics like beating a prisoner unconscious,
the Gestapo sent their suspects to the ... |
PSYOP 9.pdf | with water, and excoriated
his back with a grater.31 Such measures were actively encouraged—and even
instigated—by Stalin. In a note concerning one prisoner, Stalin asked, “Can’t
this gentleman be made to tell of his dirty deeds?”32 In the course of the 1952
“Doctors Plot” investigations, Stalin was an initiator of co... |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.