A Constitutional Amendment Banning torture, secret prisons, and extraordinary rendition

The first constitutional amendment I would like to propose for your consideration is an amendment banning torture, secret prisons, and extraordinary rendition. I present the text of it below, followed by an analysis of each of its sections.

Amendment XXVIII

Section 1. Amendments V, VI, and VIII shall be understood to apply to all persons, US citizens and non-citizens alike, in times of war as well as in times of peace.

Section 2. Neither the US government nor any branch of the Military or the Intelligence Services shall hold any person without trial or without access to a lawyer, under any circumstances whatsoever.

Section 3. Neither the US government nor any of its agencies shall hold any person, citizen or non-citizen, in any form of secret prison or detention center. Any prison operated by the US government or any of its agencies shall allow access by the media, lawyers, the Red Cross or any other medical agency, and any international watchdog agency wishing to verify the humane conditions therein. These agencies or persons must have access to individual prisoners for private interviews for the purposes of verifying the humane conditions of the prison.

Section 4. Torture of any kind, on any person, citizen or non-citizen, held by the US government or any of its agencies, is espressly forbidden. Torture shall be understood to mean the intentional infliction of any kind of pain or discomfort, physical, mental, or psychological, whether for the purposes of extracting information or not.

Section 5. The US government, or any of its agencies, may not transfer any prisoner, citizen or non-citizen, for any reason, to the custody of any other nation, agency, government or corporation that does not guarantee the same rights and protections specified in this amendment, or that has a verifiable record of torture or other human rights violations.

Section 6. Any prisoners currently held by the US government, or any of its agencies, in conditions prohibited by this amendment, shall be guaranteed trial or released within six months of the passage of this amendment.

Section 1 clarifies and strengthens the fifth, sixth, and eighth amendments to the constitution, part of the original “Bill of Rights”—and in fact, the remainder of this proposed amendment is merely an elaboration of that. A careful reader of these amendments will notice that they do not in any way limit the guarantee of these rights to US citizens. Amendment V starts with the phrase “No person shall be held…” amendment VI refers to “the accused,” and amendment VII is written entirely in the passive voice: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” I believe that the correct understanding of these amendments has less to do with the particular kinds of individuals protected by them (citizen or non-citizen, civilian or military) and more to do with the conduct of government itself—these amendments are limitations on the power of government to detain or punish any persons.

The exception specified in Amendment V “except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger” refers only to the previous clause—the guarantee of indictment by grand jury for “capital or infamous” crimes. This exception in times of war is not an exception to the right to a trial by jury, it is only an exception to the necessity of a grand jury indictment before such a trial. And in fact, amendment VI starts with the phrase “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”—all criminal prosecutions. Properly understood, the secret detention and/or torture of prisoners of war, terrorism suspects, or so-called “enemy combatants” is already unconstitutional—which I think is plain for any child to see. Yet our government has acted otherwise, so it becomes necessary to become even more specific.

(At the bottom of this essay, I have appended the full text of amendments V, VI, and VIII, courtesy of The Bill of Rights Institute, http://www.billofrightsinstitute.org, which also has texts and explanations of the Constitution and other related documents.)

Section 2 is I believe the most important part of this amendment. Under no circumstances may any person be held without trial or access to a lawyer. This is a guarantee that this fundamental right be protected in any circumstances—citizen or non-citizen, military or civilian, on US soil or in a foreign country. It is an affirmation of our basic principle of the rule of law. It is a guarantee that no person will be held indefinitely, in a kind of extra-legal limbo, without an investigation into the reasons he or she is being held.

In our society, the clearest, most effective way to establish the truth of anything is a trial by jury. A trial by necessity involves 1. investigation, 2. evidence, 3. the presentation of multiple sides to the issue, and 4. the consideration by multiple people (jury and judge) to determine the facts. Of course, trials are imperfect, and often wrong. But at least they involve a serious consideration of evidence by multiple people. Contrast this to the practice of obtaining information by torture. It has been well established recently that torture is one of the least effective ways to get the truth. Torture victims will say anything to stop the torture. There is no reasoned consideration of evidence involved. The information we usually want to get out of a prisoner—names of other collaborators, details of plans and plots—is even more crucial when it comes to terror suspects. We need the best information possible. And we have a method in our society for getting that information very effectively: it’s called plea-bargaining.

Plea-bargaining is very effective at getting information from accused persons. Rather than giving any random information to stop the pain of torture, the accused has time to consider his choices rationally, with the advice of his lawyer. And the state can evaluate whether that information is useful or not. The presence of an incentive—less punishment—can be very effective at getting information, because it gives the prisoner something to look forward to. Whereas when a prisoner is being tortured, he cannot think about the future—the torturer may kill him, even if he talks. The prisoner can only think about the present excruciating pain, and is in no position to weigh his options calmly and rationally. Plea-bargaining has been very effective at breaking up organized crime, and other kinds of crime rings. We should note the similarity between organized crime and organized terrorist networks, and realize that the same circumstances apply to individual members of those organizations: an individual, isolated and given a choice, will most likely choose to benefit himself. And the court has time to verify the truth of the information provided in a plea-bargain, because the fulfillment of the incentive (a reduction in prison time, or even being set free) waits until the other persons are tried.

If you think about it, having a trial is a benefit to the accusers as much as it is a benefit to the accused. We don’t want to have the wrong guy in our custody while the real criminal walks free. We need an effective way of establishing innocence or guilt, the more so as the crime is more dangerous. The practice of just rounding up hundreds of people, and then putting them in secret prisons, as the US government has been doing with “terror suspects,” is not so much cruel as it is stupid. We could be getting real information out of the people who really are terrorists, rather than holding innocent people for years on end without even access to lawyers. The fact that we would not tolerate such a practice on our own citizens (rounding up many people & putting them in prison), but we tolerate it when it comes to Muslims, Arabs, or Middle-Eastern-looking people, is a testament to our callousness and inhumanity as a nation, a testament to our racism and double-standards; but it is also a testament to our willingness to put aside the search for truth in favor of blind scapegoating. And such a practice will never give us the information we need to solve the problem of international terrorism.

Sections 3 and 4, against secret prisons and torture, present the other side of the coin. In effect, they are the same as the requirement for a fair, public, and speedy trial embodied in section 2 and amendments V and VI. However, in specifying them, we accomplish two additional things. First, we more firmly guarantee the basic human rights of prisoners. And second, we provide a clearer moral and ethical standard for the conduct of our nation. In these more desperate, polarized times, when most of the world sees America as an aggressor nation, a violator of human rights, and a hypocritically arrogant power that attacks other nations for the same things it practices, we need to re-affirm the principles embodied in our constitution and our founding as a nation. We need a new moral clarity, and we need to be specific about it. We need to do so for the sake of the soul of our nation, as well as for the sake of our public image and standing internationally.

Section 5 is simply a guarantee that we will not transfer persons to other countries that do our dirty work for us—a despicable practice, which is actually an endorsement of the human rights violations of those other countries. This section also gives an important detail: that we cannot transfer prisoners to nations who do not guarantee the same rights we do. This is different from saying that “we cannot transfer prisoners to other nations for the purposes of torture,” because such a statement could allow for moral equivocation—“we didn’t intend for them to torture him.” The statement in section 5 is a stronger one: namely that we cannot transfer a prisoner for any reason to an authority that does not guarantee the same rights we do. The side effect of this is that we encourage other nations to protect rights in the same way we do.

Section 6 is the “emancipation proclamation” for all prisoners currently held in Guantanamo Bay and elsewhere, held cruelly and illegally by our government. It is time we gave them access to lawyers, humane conditions, and trials—otherwise, we had better free them.

If you think we need to pass this amendment, please forward the text of it (& a link to the essay: http://demablogue.typepad.com/demablogue ) to everyone you know. Obviously, we cannot pass an amendment without congress or the state governments (See article V of the constitution). But a wide-spread public appeal for an anti-torture amendment could have influence on our representatives.

Below, see the text of Amendments V, VI, and VIII

Amendment V   

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI   

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VIII   

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Comments

[Salihah]

I found your link via the Corporate Media Watch tribe on Tribe.com. I posted the link in a tribe I moderate, True Islam. May I post your link on my blog? As well as put your blog URL in my favorite blog links section?

Thank you for being a voice of reason.

Peace, Salihah

[George Hunsinger]

Would you consider re-writing Section 4?

I would like to see it lead with a rejection of "all cruel, inhuman and degrading treatment" as defined by customary international law.

Torture would then be included, explicitly, under that rubric.

It is important not to disconnect a ban against torture from the larger prohibiiton of cid.

The point is not to reject torture and also cid, but to reject cid which necessarily includes torture.

I think your idea has real merit. I will circulate it through the human rights community for comment.

But I would prefer to have a rewritten version of Section 4 first.

Thank you.

Dr. George Hunsinger
Princeton Theological Seminary
Founder, National Religious Campaign Against Torture
609-252-2114

[Travis]

Constitutional Ammendment XVII-
IMIGRATION INTEGRITY AMMENDMENT:

Section 1: A person born within the borders of the United States of America or its territories that does not have, at the time of birth of that person, at least one parent that is an American citizen or entitled to be an American citizen is not entitled to citizenship of the United States.

Section 2: Persons residing within the borders of the United States of America that do not hold citizenship of the same, will not be guaranteed nor automatically receive the same rights attributed to legal and current citizens.

[Thesmothete]

For a constitutional amendment, this seems too long and complicated -- the same thing that torpedoed the balanced budget amendment. Simple is better -- more timeless. We can draw on the language and experience of the 8th and 13th amendments:

Amendment XXVIII

Section 1. The cruel or indecent treatment of a person in the custody of the United States, or any government within its jurisdiction, is prohibited.

Section 2. Congress shall have the power to interpret and enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years of its submission.

Advantages of this approach:

It uses the broad terms "cruel" (found in the 8th amendment, but interpreted by some to apply only to judicially-imposed "punishments") and adds the term "indecent" instead of "unusual" as is found in the 8th Amendment. The idea of an "evolving standard of decency", so problematic implied to some the 8th Amendment, would be explicit here. With this understanding, the legislature would be (nearly uniquely among all parts of the Constitution) empowered to interpret and re-interpret what is "decent" over time. The amendment states that cruel "OR" indecent treatment is prohibited, allowing leeway to ban treatment that is arguably only one of those two. Based on recent Congressional votes, we can feel confident that torture would be included by Congress in any definition of cruel or unusual. Congress could also deem indefinite (or lengthy) detention without trial as indecent. If Congress failed to define these terms in law, section 1 would remain self-executing in the courts.