Torture by Proxy
Karen L. Snell
The Recorder
November 2, 2001
To the French, Kenneth Starr is known as the "Ayatollah
sexuelle," but after
his recent comments in The Washington Post suggesting that
we should cast
aside traditional civil liberties in the fight against
terrorism, just plain
"Ayatollah" seems more fitting.
According to Starr, five justices of the U.S. Supreme Court
have signaled
that they would give "heightened deference to the
judgments of the political
branches with respect to matters of national security,"
and thus, would be
willing to bend the constitutional rules in a case involving
terrorism.
Starr's comments provide encouragement to the Department of
Justice, which,
according to the Post, is reportedly contemplating the use
of "drugs or
pressure tactics" when terrorism suspects refuse to
speak, or "extraditing
the suspects to allied countries where security services
sometimes employ
threats to family members or resort to torture." An FBI
official quoted in
the Post recognizes that such evidence would be
inadmissible, but says that
"legally admissible evidence in court may not be the
be-all and end-all."
Attorney General John Ashcroft echoed this sentiment during
a recent
appearance on ABC's "Nightline."
Starr's attempt to justify the unthinkable is worthy of
Osama bin Laden
himself. According to a handbook that American prosecutors
have suggested
was used by Al Queda to train members of the network,
"religious scholars
have permitted beating ... . It is permitted to strike the
nonbeliever who
has no covenant until he reveals the news, information, and
secrets of his
people."
Starr and Ashcroft appear to have forgotten that the reason
evidence
obtained by physical and mental pressure tactics is
inadmissible in U.S.
courts is because such tactics are unconstitutional. They
violate the Fifth
Amendment privilege against self-incrimination, which the
Supreme Court has
aptly described as the "hallmark of our
democracy," the "essential mainstay
of our adversary system," which recognizes "the
inviolability of the human
personality."
In our country we believe that when the government seeks to
punish an
individual, it must "produce the evidence against him
by its own independent
labors, rather than the cruel, simple expedient of
compelling it from his
own mouth." Miranda v. Arizona, 384 U.S. 436 (1966).
Certain interrogation techniques, including beatings and
other forms of
physical and psychological torture, have been declared so
offensive to a
civilized system that they must be condemned under the Due
Process Clause of
the Fifth and 14th Amendments. Brown v. Mississippi, 297
U.S. 278 (1936).
Are these values so fragile that it takes one attack to
throw them out the
window?
The use of pressure tactics, including torture by proxy, not
only renders
evidence obtained inadmissible in court. It's also a crime.
And it is not
just the person who physically or mentally assaults a
suspect who is guilty.
Any person who aids, abets, counsels or conspires to commit
such acts is a
criminal. Title 18, United States Code, Section 242,
"Deprivation of rights
under color of law," provides that officials who
willfully subject any
person to the deprivation of any rights, privileges, or
immunities secured
or protected by the Constitution or laws of the United
States shall be
imprisoned up to 10 years if bodily injury results. If the
individual dies,
the perpetrators are subject to the death penalty.
Section 241 outlaws conspiracies against rights like those
suggested by the
government officials quoted in The Washington Post. And
Section 2340A
specifically extends the law against torture to nationals of
the United
States who commit or attempt to commit the crime abroad.
Prosecutions can be
brought under state laws as well, such as those pertaining
to aggravated
assault.
To the extent that the government believes it can evade the
criminal law by
extraditing suspects to places where they are likely to be
tortured, they
are dead wrong. Not only would the conspiracy statute cover
such conduct, it
is forbidden by the Convention Against Torture, which the
United States
ratified in 1994. This treaty might serve as remedial
reading for Starr and
Ashcroft. It provides:
The State parties to this Convention,
Considering that, in accordance with the principles
proclaimed in the
Charter of the United Nations, recognition of the equal and
inalienable
rights of all members of the human family is the foundation
of freedom,
justice and peace in the world,
Recognizing that those rights derive from the inherent
dignity of the human
person,
Considering the obligation of States under the Charter, ...
to promote
universal respect for, and observance of, human rights and
fundamental
freedoms,
Having regard to article 5 of the Universal Declaration of
Human Rights and
article 7 of the International Covenant on Civil and
Political Rights, both
of which provide that no one shall be subjected to torture
or to cruel,
inhuman or degrading treatment or punishment, ...
Desiring to make more effective the struggle against torture
and other
cruel, inhuman or degrading treatment or punishment
throughout the world,
Have agreed as follows:
No State Party shall expel, return ("refouler") or
extradite a person to
another State where there are substantial grounds for
believing that he
would be in danger of being subjected to torture.
This treaty is not just "international law," for
which the U.S. has little
respect. It has been codified as part of our law. It is the
law of the land.
Not surprisingly, however, the State Department has taken
the position that
when it comes to applying the treaty in the extradition
context, its
decisions are not subject to judicial review.
In a case still pending, U. S. v. Cornejo-Barreto, 218 F.3d
1004 (9th Cir.
2000), the 9th Circuit begged to differ. We can only hope
that the court's
approach withstands further appeal, in light of the Justice
Department's
position that extraditions for the very purpose of
subjecting individuals to
torture is permissible.
It is a historical fact that in wartime America some civil
liberties have
been temporarily suspended. If the present government wishes
to suspend
civil liberties and violate both the law and fundamental
human decency, let
them come out and say so, and then try to explain to the
American people
exactly what it is we stand for and why we fight.
It is more likely that the American people would have to
explain it all to
them. Because Americans know that even in the most extreme
conception of a
suspension of liberties, to subject any human being to
torture, no matter
how virulent an enemy he may be, is going far too far. And
if there is one
thing Kenneth Starr is an expert in, it's in going too far.
Karen L. Snell, a partner at San Francisco's Clarence &
Snell, specializes
in constitutional litigation and international extradition.