Is torture unconstitutional?

[Michael MASINTER]

As I understand Rochin and it most recent restatement, no process can make
conduct which shocks the conscience of court constitutional, which, in the
context of this discussion, means only that otherwise unconstitutional
torture cannot be made constitutional by judicial process.  Though
Rochin's standard provides the substantive framework for assessing the
constitutionality of torture, it bears noting that different judges have
different consciences, and some are more easily shocked than others.  For
that reason, although I would like to believe torture is unconstitutional,
I am not confident that a majority of the Court would necessarily agree in
some of the extreme examples given, particularly because the issue
presumably would arise only when someone who has been tortured sues for
damages, or when someone who has tortured has been indicted for a crime.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Fri, 14 Jun 2002, Gey, Steve wrote:

> I'm afraid Eugene may be guiltier than Dan of resorting to unhelpful
> abstractions here.  Of course, under almost any measure of civil liberties
> the United States is a more virtuous society than the various other
> countries in the world that engage in torture.  But it doesn't necessarily
> follow that an unjust act becomes any less unjust simply because it is
> undertaken by a generally virtuous actor.  The gist of Eugene's position is
> that "Whatever the right or wrong of the matter [i.e., torture] may be, it
> can't be decided simply by claiming that ends are irrelevant and that means
> are all that matter."  But it seems to me that when it comes to applying the
> relevant constitutional doctrine to torture the means ARE all that matter.
>
> The relevant constitutional provision, as Sandy pointed out in his previous
> post, is the Due Process Clause.  As recently as 1998, in Sacramento v.
> Lewis, seven members of the Court reaffirmed the Rochin "shocks the
> conscience" analysis for denials of life and liberty through excessive force
> or other grave abuses of official authority.  This is Justice Kennedy's
> rendition of the principle in his concurring opinion:  "The Court is
> correct, of course, in repeating that the prohibition against deprivations
> of life, liberty, or property contained in the Due Process Clause of the
> Fourteenth Amendment extends beyond the command of fair procedures.  It can
> no longer be controverted that due process has a substantive component as
> well.  As a consequence, certain actions are prohibited no matter what
> procedures attend them."  The phrase "certain actions are prohibited no
> matter what procedures attend them" indicates that--at least as a matter of
> constitutional principle--the Court would not be willing to countenance
> certain actions no matter how compelling the government's justification.
> Likewise, when Justice Frankfurter rejected the government's methods in
> Rochin itself, he noted that they were "methods too close to the rack and
> the screw to permit of constitutional differentiation."  The clear
> implication is that the Court would not permit the government to use the
> rack and screw in any circumstances for any purpose.  With regard to the
> constitutionality of the particular manifestations of torture, therefore,
> the means are all that matter.
>
> So we are left debating methods.  Assume an impending major terrorist
> incident and a captured suspect with relevant information about that
> incident.  Is raping the suspect to break down his or her resistance to
> questioning permissible?  Pulling out the suspect's fingernails?  Pumping
> the suspect's lungs full of water?  Kicking out teeth?  Electrodes on
> testicles?  Sorry to be graphic, but the devil is in the details.
>
> Steve Gey
> Florida State University
> College of Law
>
>
> -----Original Message-----
> From: Volokh, Eugene
> To: CONLAWPROF at listserv.ucla.edu
> Sent: 6/13/02 6:08 PM
> Subject: Re: Is torture unconstitutional?
>
>         I sympathize with many criticisms of torture, but I think the
> argument below is just too abstract to carry the day.
>
>         Moral high grounds are all well and good, and all else being
> equal of course we'd like to have them.  But lots of very sensible and
> decent people argue that sometimes we need to sacrifice the moral high
> ground in order to, well, save the lives of thousands (or more) of
> people -- and that maybe a moral high ground that strips us of the power
> to do this isn't so moral after all.  Simple appeals to "keeping the
> moral high ground" just don't effectively respond to this important
> argument.
>
>         Likewise, the argument that "Once we start using torture as a
> means to an end, are we any better than al Qaeda?" strikes me as
> fundamentally misplaced.  You bet we'd be better than al Qaeda; while
> means are important, ends are important, too.  Using torture to save the
> lives of innocents, even if it's morally flawed, is surely better than
> killing thousands of innocents in order to install purer Islam in the
> Middle East.
>
>         To take one analogy, lots of people have criticized the
> firebombing of Dresden and the nuclear bombing of Hiroshima and
> Nagasaki, on the grounds that we shouldn't have deliberately targeted
> urban populations in order to cow the enemy into submission.  I'm not
> sure that this criticism is right, but it's certainly plausible.  But
> the answer to "Once we start deliberately killing civilian populations
> as a means to an end, are we any better than Hitler?" is "Of course we
> are."  Whatever the right or wrong of the matter may be, it can't be
> decided simply by claiming that ends are irrelevant and that means are
> all that matter.
>
>         As I said, there are powerful arguments against torture, for
> instance the risk that allowing torture in the most extaordinary cases
> will lead to allowing it in the merely extraordinary cases and then in
> fairly ordinary cases.  But it seems to me that abstract arguments like
> the one below do more to weaken the argument against torture than to
> strengthen it.
>
>         Eugene
>
>         If torture is not a violation the U.S. Constitution, or any
> Constitution, something is very wrong.  It seems to me that the U.S.
> claims to have the "moral high ground" in the world.  If the U.S.
> starts using torture to get information, any American claim to having
> the moral high ground will be lost, and immediately.  In my view,
> torture is fundamentally wrong; not merely "malum prohibitum," but
> "malum in se."  It degrades the torturer as well as inflicts pain on
> the victim.  Once we start using torture as a means to an end, are we
> any better than al Quaeda?  This is a very slippery slope.  We must
> beware of legalistic arguments in support of behavior that is utterly
> wrong.  Let's not burn our most fundamental principles in an effort
> to defend them.
>
>         It's easy for ideals to lead to the most grievous crimes.
> Nietzche
> said, in effect, that "when you are fighting a monster, you better be
> careful, so that you don't become a monster yourself."  There are
> monsters out there and always have been...al Quaeda is one of them.
> In our battle against monsters, let's not become monsters ourselves.
>
>         Dan Levin
>
>