by Paul Smith
Eric Holder, Obama’s nominee for attorney general, stated with no equivocation before Senate confirmation hearings on January 15th, that waterboarding was indeed torture. His candor seems deemed to set a new precedent for what the Justice Department may resemble under an Obama administration: if it is torture, then by definition it is illegal.
Perhaps Holder’s forthrightness along with Obama’s promise to close the prison at Guantanamo Bay will indicate a shift in direction for how this country deals with detainees. No longer shall this nation engage in savage behavior more befitting of a third-world banana republic.
The United States should set that standard for the world as a democracy which conducts itself in a dignified manner with a system of justice that provides due process, equal protection and honorable treatment for all.
Although the Eighth Amendment to the Constitution bars “cruel and unusual punishment” and Title 18 of the US Code § 2340 already prohibits the use of torture, the previous administration hunted for clever legal loopholes around such impediments, and as a result, many feel America had sold its soul.
The Bush administration sought to narrowly interpret the definition of torture after September 11th, 2001, through the implementation of the euphemistically named “enhanced interrogation techniques.”
The Office of Legal Counsel (OLC) in Bush’s Justice Department drafted several memos outlining what they deemed as reasonable and legal treatment of detainees captured during the “War on Terror.”
These memos, which were prepared by then White House counsel Alberto Gonzales, OLC legal advisor John Yoo, and former legal counsel to Vice President Cheney, David Addington, suggested that anything short of “organ failure”, “impairment of bodily function”, or “death” was fair game for interrogators to employ.
In fact, in Barton Gellman’s new book on Vice President Cheney, Angler: The Cheney Vice Presidency, the Pulitzer-prize winning journalist writes that John Yoo once indicated the only interrogation technique he rejected was burying a prisoner alive.
The time has come for America to go soul-searching.
Although many former and current interrogators suggest torture yields unreliable information and various polls indicate that most Americans are against the use of torture in all circumstances, there is still the question of the so-called “ticking time bomb” scenario.
In this hypothetical situation, the question is raised as to what shall be done with a suspect known to have actionable intelligence about an immediately impending attack.
I think I may have a solution that will satisfy both the blood-lusting, Jack Bauer-loving commandos along with the Constitution-thumping, civil liberties-loving peace-mongers.
My recommendation is for new laws to be drafted by Congress which explicitly and broadly define torture and outlaw its use in all instances regardless of the circumstances. However, I also propose that written into the statutory language there be recommendation for jury nullification of said statute if merited by extenuating circumstances in accordance with the jury’s discretion.
In other words, torture is always illegal, but a jury can nullify its illegality if it they feel the situation warrants it.
While a matter of some debate, in actuality, many would argue juries already possess the right to nullify any law on the books.
Jury nullification is a doctrine that dates back hundreds of years and formed the basis of trial-by-jury common law practice of England in the Magna Carta, upon which our Constitution drew much inspiration.
One of the most famous instances of jury nullification was the 1670 case of William Penn in England. While the evidence proved Penn was “guilty” of unlawful assembly for publically proselytizes a religion other than the Church of England, the jury refused to convict on the grounds that they disagreed with the law.
Though the intended purpose of jury nullification is to be a bulwark against unjust legislation, I recommend using this legal doctrine in conjunction with the statutory language.
So, rather than provide legal precedent for “justifiable torture” (which could be a dangerous slippery slope) in the way we have “justifiable homicide”, declare that torture is always illegal, but remind juries of their right to nullify the law if they feel the rare circumstances demand it.
This way, if we ever encounter the unlikely “ticking time bomb” scenario, there will be enough legal leeway for an interrogator to get his fair day in court, while also outlawing torture in all circumstances.
And perhaps America will reclaim her soul.