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Torture and positive law jurisprudence

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Torture and positive law jurisprudence for the white house
Torture and Positive Law: Jurisprudence for the White House, Waldron, Jeremy
                    TORTURE AND POSITIVE LAW:
                                Jeremy Waldron *
           In recently published memoranda, Justice Department lawyers have suggested that it is not in all circumstances wrong or unlawful to inflict pain in the course of interrogating terrorist suspects. Also, at least one legal scholar has suggested that the United States might institute a system of judicial torture warrants, to permit coercive interrogation in cases where it might yield information that will save lives.
           The shocking nature of these suggestions forces us to think afresh about the legal prohibition on torture. This Article argues that the prohibition on torture is not just one rule among others, but a legal archetype-a provision which is emblematic of our larger commitment to no brutality in the legal system. Characterizing it as an archetype affects how we think about the implications of authorizing torture (or interrogation methods that come close to torture). It affects how we think about issues of definition in regard to torture. And it affects how we think about the absolute character of the legal and moral prohibitions on torture.
           On this basis, the Article concludes not only that the absolute prohibition on torture should remain in force, but also that any attempt to loosen it (either explicitly or by narrowing the definition of "torture") would deal a traumatic blow to our legal system and affect our ability to sustain the law's commitment to human dignity and nonbrutality even in areas where torture as such is not involved.
INTRODUCTION  .................................................... 1682
     I. LEGAL  DEFINITIONS ......................................... 1688
        A. The Texts and the Prohibitions ...................... 1688
        B.  Rules and  Backgrounds ..............................  1691
        C. The Interest in Clear Definitions ..................... 1695
        D. The Bybee Memorandum ............................ 1703
    II. LEGAL ABSOLUTES ........................................   1709
        A. Legal Contingency: Is Nothing Sacred? .............. 1709
        B.  The  Dershowitz Strategy ............................. 1713
    III. LEGAL ARCHETYPES ........................................ 1718
        A. Repugnance to Law ................................ 1718
        B. Positivism and Legal Archetypes ..................... 1721
        C. What Is the Rule Against Torture Archetypal of?...... 1726
        D. The Rule Against Torture as an Archetype in
            Am erican Law  ......................... ............. 1728
            1. Eighth Amendment Cases ........................ 1730
            2.  Procedural Due  Process .......................... 1731
            3.  Substantive Due Process .......................... 1733
        E. Undermining an Archetype ....................... ..1734
    IV . THE STATE ................................................ 1739
        A. "Engine of State" and the Rule of Law ............... 1739
        B. An Archetype of International Law ................... 1743
CONCLUSION   ......................................................  1748
     My starting point is the dishonor that descended upon the United States early in 2004 as a result of revelations about what was happening under American control in Abu Ghraib prison in Iraq. That dishonor involved more than the Abu Ghraib nightmare itself-the photographs of sexual humiliation, the dogs, the hoods, the wires, the beatings.[1] It has become apparent that what took place there was not just a result of the depravity of a few poorly trained reservists, but the upshot of a policy determined by intelligence officials to have military police at the prison "set favorable conditions" (that was the euphemism) for the interrogation of detainees.[2]
      The concern and the dishonor intensified when it was revealed that abuses were not isolated in this one prison, but that brutal interrogations were also being conducted by American officials elsewhere. We know now that a number of captured officers in Iraq and Afghanistan, including general officers, were severely beaten during interrogation by their American captors, and in one case killed by suffocation.[3] We know too that terrorist suspects, enemy combatants, and others associated with the Taliban and Al Qaeda held by the United States in the camps at Guantanamo Bay were interrogated using physical and psychological techniques[4] that had been outlawed by the European Court of Human Rights after their use by British forces against terrorist suspects in Northern Ireland in the early 1970s,[5] and outlawed by the Israeli Supreme Court after their use by security forces in Israel against terrorist suspects in the 1990s.[6]
      Above all, my starting point is the realization that these abuses have taken place not just in the fog of war, but against a legal and political background set by discussions among lawyers and other officials in the White House, the Justice Department, and the Department of Defense about how to narrow the meaning and application of domestic and international legal prohibitions relating to torture.
      It is dispiriting as well as shameful to have to turn our attention to this issue.[7] In 1911, the author of the article on "Torture" in the Encyclopaedia Britannica wrote that "[t]he whole subject is now one of only historical interest as far as Europe is concerned.[8] But it has come to life again. With the growth of the ethnic-loyalty state and the security state in the twentieth century, the emergence of anticolonial insurgencies and other intractable forms of internal armed conflict, and the rise of terrorism, torture has returned, and as Judith Shklar writes, "flourished on a colossal scale.[9] It is not just a rogue-state, third-world, banana-republic phenomenon: The use of torture has in recent decades disfigured the security policies of France (in Algeria),[10] Britain (in Northern Ireland),[11] Israel (in the Occupied Territories),[12] and now the United States (in Iraq, Afghanistan, and Cuba).[13]
      Perhaps what is remarkable is not that torture is used, but that it  (or something very close to it) is being defended,[14] and by well-known  American jurists and law professors. Here are three examples:
      (i) Professor John Yoo now teaches law at the University of California at Berkeley. While on leave from Boalt Hall as a Deputy Assistant Attorney General in the Justice Department, Professor Yoo was the lead author of a January 2002 memorandum persuading the Bush Administration to withdraw its recognition of the rules imposed by the Geneva Conventions so far as the treatment of prisoners belonging to Al Qaeda and the Taliban was concerned.[15] This pertained particularly to the issue of interrogation and torture. Professor Yoo argued that captured members of Al Qaeda and the Taliban were not protected by any prohibition on torture or cruel interrogation arising out of the Geneva Conventions because the particular category of armed conflict in which they were involved was not explicitly mentioned in any of the Conventions under a description that the Bush Administration would accept.[16] Moreover, Professor Yoo argued that the Administration was not constrained by any inference from the Geneva Conventions so far as torture was concerned, nor was it constrained in this regard by jus cogens norms of customary international law. [17]
      (ii) Alan Dershowitz is a professor at Harvard Law School who, in two well-publicized books, has argued that torture may be a morally and constitutionally acceptable method for United States officials to use to extract information from terrorists when the information may lead to the immediate saving of lives.[18] He has in mind forms of nonlethal torture, such as "a sterilized needle inserted under the fingernails to produce unbearable pain without any threat to health or life ...... [19] Professor Dershowitz wants us to consider the possibility that it might be appropriate for torture of this kind to receive explicit authorization in the form of judicial torture warrants.[20]
      (iii) Jay Bybee is a judge on the Ninth Circuit and former law professor at Louisiana State University and the University of Nevada. Between 2001 and 2003, Bybee was head of the Office of Legal Counsel in the Department of Justice, and in that capacity he put his name on a memorandum sent to the White House purporting to narrow the definition (or the Administration's understanding of the definition) of "torture" so that it did not cover all cases of the deliberate infliction of pain in the course of an interrogation.[21] The word "torture" and the prohibition on torture should be reserved, Bybee argued, only for the infliction of the sort of extreme pain that would be associated with death or organ failure.[22] He also argued that legislation restricting the use of torture by U.S. forces under any definition might be unconstitutional as a restriction on the President's power as Commander-in-Chief.[23]
      These proposals have not arisen in a vacuum. The United States suffered a catastrophic series of terrorist attacks on September 11, 2001, and since then the Bush Administration has committed itself to a "war on terror" and an active doctrine of preemptive self-defense. In Al Qaeda it faces a resourceful enemy that obeys no legal restraints on armed conflict and may attack without warning at any time. The issue of torture arises because of the importance of intelligence in this conflict: Success in protecting a country from terrorist attack depends on intelligence more than brute force; good intelligence is also necessary for protecting our armed forces from insurgent attack in countries like Iraq (whose occupation by the United States is connected with the war on terror).
      I have heard colleagues say that what the Bush Administration is trying to do in regard to torture should be understood sympathetically in light of these circumstances, and that we should be less reproachful of the Administration's efforts to manipulate the definition of "torture" than we might be in peacetime. I disagree; I do not believe that "everything is different" after September 11.[24] The various municipal and international law prohibitions on torture are set up precisely to address the circumstances where torture is likely to be most tempting. If the prohibitions do not hold fast in those circumstances, then they are of little use in any circumstance. In what follows, therefore, I shall consider the various attempts that have been made to narrow or modify the prohibitions on torture as though they were attempts to narrow its normal meaning or its normal application. This is because those who set up the prohibitions envisaged that circumstances of stress, fear, and danger would be the normal habitat in which these provisions would have to operate.
      I want to place particular emphasis on the fact that these efforts to modify the prohibition on torture have been undertaken by lawyers.[25] Sure, our primary objection to torture ought to be out of consideration for the potential victims of the treatment that Yoo, Dershowitz, and Bybee appear to condone. But the defense of torture is also shocking as a jurisprudential matter. That views and proposals like these should be voiced by scholars who have devoted their lives to the law, to the study" of the rule of law, and to the education of future generations of lawyers is a matter of dishonor for our profession. Reading the memoranda of Judge Bybee and Professor Yoo and the mooted proposal of Professor Dershowitz shook my faith in the integrity of the community of American jurists. At the very least, it indicates the necessity of our thinking more deeply about the nature of the rule against torture, its place in our legal system, and the responsibilities that lawyers (particularly lawyers working in government) have to uphold the integrity of our law in this regard.[26]
      In what follows, I want to do several things. In Part I of this Article, I shall explore the idea that there is something wrong with trying to pin down the prohibition on torture with a precise legal definition. Insisting on exact definitions may sound very lawyerly, but there is something disturbing about it when the quest for precision is put to work in the service of a mentality that says, "Give us a definition so we have something to work around, something to game, a determinate envelope to push."
      Part II of this Article will consider whether the rule against torture can be regarded as an absolute. This is often treated as a moral question, but I also want to consider the idea of a legal absolute. The rule against torture is often presented as a legal absolute, but in this Part, I want to consider the persuasiveness of claims made by Professor Dershowitz and others that we should be willing to recognize legal exceptions to this rule.
      Part III of this Article continues the exploration of the idea that the rule against torture may have extraordinary legal force. In Part Il, I want to defend the proposition that torture is utterly repugnant to the spirit of our law, and I want to explore the idea that narrowing or otherwise undermining the definition of torture might deal a body blow to the corpus juris that would go beyond the immediate effects on the mentality of torturers and the terror and suffering of their victims. I shall argue that the rule against torture operates in our law as an archetype-that is, as a rule which has significance not just in and of itself, but also as the embodiment of a pervasive principle. As the notion of a legal archetype is new and unfamiliar, I shall spend some time outlining and illustrating the jurisprudence that is necessary to make sense of this idea.
      Finally, in Part IV, I will extend the analysis to consider the relation between prohibitions on torture and the idea of the rule of law-specifically, the idea of subjecting the modern state to legal control. In this Part, I will consider also the application of the argument in Part III to the role played by the prohibition on torture in international law and, in particular, the international law of human rights.

[1] 105 Colum. L. Rev. 1681 (2005) [ 70 pages, 1681 to 1750 ]
      * University Professor, Columbia Law School. Early versions of this Article were
presented as public lectures or in law school workshops at Victoria University of
Wellington, the University of Otago, the University of California at Berkeley, Chicago-Kent
Law School, Harvard Law School, and Columbia Law School. I am grateful to all those
who have offered criticisms and suggestions, particularly Chief Justice Sian Elias of New
Zealand and also Jose Alvarez, Victor Austin, Mark Bennett, David Caron, Jean Cohen,
Jonathan Cole, William Dailey, Meir Dan-Cohen, John Dawson, Michael Doyle, Ariela
Dubler, Hal Edgar, Richard Fallon (and the students in his seminar at Harvard), Katherine
Franke, Victor Goldberg, Jeffrey Gordon, Kent Greenawalt, Karen Greenberg, Steven
Heyman, Les Holborow, Scott Horton, Kirstin Howard, Sanford Kadish, Sir Kenneth Keith,
Tomas Kennedy-Grant, Kenneth Kress, Chris Kutz, Sanford Levinson, Jacob Levy, David
Lieberman, Jim Liebman, Catherine Lu, David Luban, Campbell McLachlan, Frank
Michelman, Martha Minow, Michael Moore, Glyn Morgan, Alan Musgrave, Sheldon
Nahmod, Gerald Neuman, Matthew Palmer, Richard Primus, Eric Rakowski, Mark Rosen,
Carol Sanger, Fred Schauer, Samuel Scheffler, David Schizer, Joan Scott, Scott Shapiro,
Henry Shue, Bill Simon, Jonathan Simon, Matthew Smith, Joan Steinman, Peter Strauss,
David Sussman, Richard Sutton, Derek Tang, Dennis Thompson, Melissa Williams, Richard
Wright, and Ben Zipursky.
See James Risen, G.I.'s Are Accused of Abusing Iraqi Captives, N.Y. Times, Apr. 29, 2004, at A15.

[2] See Peter Hermann, Army Sets 1st Court-Martial in Abuses, Balt. Sun, May 10, 2004,
at 1A ("A report by Maj. Gen. Antonio M. Taguba... notes that soldiers said they were told
to 'set favorable conditions' for interviews with inmates, which the soldiers have described
in e-mail, letters and a diary as orders to rough up the detainees to elicit their
cooperation."); see also Patrick J. McDonnell et al., Report on Iraqi Prison Found
"Systemic and Illegal Abuse," L.A. Times, May 3, 2004, at Al ("Taguba found that military
intelligence interrogators . . . 'actively requested that. .. guards set physical and mental
conditions for the favorable interrogation of witnesses.' . . . One sergeant told investigators
that military intelligence interrogators urged guards to 'loosen this guy up for us' and
'make sure he has a bad night.'"). See generally Seymour M. Hersh, Chain of Command:
The Road From 9/11 to Abu Ghraib 1-72 (2004) (discussing conditions at Abu Ghraib
and extent of government's involvement).

[3] . See Miles Moffeit, Brutal Interrogation in Iraq: Five Detainees' Deaths Probed,
Denver Post, May 19, 2004, at Al ("Brutal interrogation techniques by U.S. military
personnel are being investigated in connection with the deaths of at least five Iraqi
prisoners .... The deaths include the killing in November of a high-level Iraqi general who
was shoved into a sleeping bag and suffocated, according to the Pentagon report."); see
also National Briefing, Colorado: Trial Ordered in Death of Iraqi General, N.Y. Times,
June 4, 2005, at A12 ("Three soldiers have been ordered to stand trial at Fort Carson on
murder charges concerning the death of an Iraqi general, who suffocated during an
interrogation in 2003.").

[4] These included deprivation of sleep, food, and water; covering detainees' heads with hoods; and forcing them to stand in physically stressful positions. Don Van Natta Jr., Questioning Terror Suspects in a Dark and Surreal World, N.Y. Times, Mar. 9, 2003, § 1, at 1.

[5] See Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 41, 94 (1978).

[6] See HCJ 5100/94 Pub. Comm. Against Torture in Israel v. Israel [1999] IsrSC 53(4) 817.

[7] A recent article by Seth Kreimer on this issue begins: "There are some articles I
never thought I would have to write; this is one." Seth F. Kreimer, Too Close to the Rack
and the Screw: Constitutional Constraints on Torture in the War on Terror, 6 U. Pa. J.
Const. L. 278, 278 (2003).

[8] 27 Encyclopaedia Britannica 72, 72 (11th ed. 1911); see also W.L. Twining & P.E.
Twining, Bentham on Torture, 24 N.I.L.Q. 305, 305 (1973) (quoting same).

[9] Judith Shklar, The Liberalism of Fear, in Liberalism and the Moral Life 21, 27
(Nancy Rosenblum ed., 1989).

[10] See Pierre Vidal-Naquet, Torture: Cancer of Democracy: France and Algeria
1954-62, at 29-106 (Barry Richard trans., 1963) (examining political and judicial
breakdown in France surrounding systematic use of torture in Algerian War of

[11] See Michael O'Boyle, Torture and Emergency Powers Under the European
Convention on Human Rights: Ireland v. The United Kingdom, 71 Am. J. Int'l L. 674,
674-80 (1977) (considering reports and litigation concerning interrogation techniques
used by British security forces in Northern Ireland).

[12] See Human Rights Watch/Middle East, Torture and Ill-Treatment: Israel's
Interrogation of Palestinians from the Occupied Territories 108-240   (1994)
(documenting coercive methods in use at Israeli interrogation centers); see also Amnesty
International, Israel/Occupied Territories and the Palestinian Authority: Five Years After
the Oslo Agreement: Human Rights Sacrificed for "Security" 8-18 (1998) (detailing how
Israel's "legalization and systematization of torture has [since 1993] ... become a more
entrenched part of the system in which Palestinian detainees find themselves").

[13] See generally The Torture Papers: The Road to Abu Ghraib (KarenJ. Greenberg
& Joshua L. Dratel eds., 2005) (presenting U.S. government documents supporting and
recording use of coercive techniques in Afghanistan, Guantinamo Bay, and Abu Ghraib).

[14] . Cf. Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992)
("That states engage in official torture cannot be doubted, but all states believe it is wrong,
[and] all that engage in torture deny it .... ).

[15] Memorandum from John Yoo, Deputy Assistant Att'y Gen., & RobertJ. Delahunty,
Special Counsel, to William J. Haynes II, Gen. Counsel, Dep't of Def. 1 Uan. 9, 2002) (on
file with the Columbia Law Review) [hereinafter Yoo Memorandum].

[16] Id. at 11-25. This position was also urged by then-White House counsel Alberto
Gonzales, who characterized aspects of the Geneva Convention protections as "quaint" and
"obsolete." Julian Coman, Interrogation Abuses Were 'Approved at Highest Levels,'
Sunday Telegraph (London), June 13, 2004, at 26. Alberto Gonzales is now Attorney
General of the United States.

[17] . See Yoo Memorandum, supra note 15, at 34-39.

[18] . See Alan Dershowitz, Shouting Fire: Civil Liberties in a Turbulent Age 470-77
  (2002); Alan Dershowitz, Why Terrorism Works: Understanding the Threat, Responding
  to the Challenge 132-63 (2002) [hereinafter Dershowitz, Why Terrorism Works]; see also
  Alan Dershowitz, Tortured Reasoning, in Torture: A Collection 257, 257-80 (Sanford
  Levinson ed., 2004).

[19] Dershowitz, Why Terrorism Works, supra note 18, at 144.

[20] Id. at 156-63.

[21] See Memorandum from Office of the Assistant Att'y Gen. to Alberto R. Gonzales,
Counsel to the President (Aug. 1, 2002) (on file with the Columbia Law Review)
[hereinafter Bybee Memorandum].

[22] Id. at 6.

[23] Id. at 33-39.

[24] . It is worth noting that a-Committee of Ministers of the Council of Europe (the
organization responsible for the European Convention on Human Rights) adopted a set of
guidelines for the fight against terror in July 2002 that included a reaffirmation of the
absolute prohibition of torture. See Comm. of Ministers, Council of Eur., Guidelines on
Human Rights and the Fight Against Terrorism 8 (2002), available at http://www.coe.int/
T/E/humanrights/h-inf(2002)8eng.pdf (on file with the Columbia Law Review) ("The use
of torture or of inhuman or degrading treatment or punishment is absolutely prohibited,
in all circumstances, and in particular during the arrest, questioning and detention of a
person suspected of ... terrorist activities, irrespective of the nature of the acts that the
person is suspected of . . . ."). For this reference I am grateful to Sanford Levinson,
"Precommitment" and "Postcommitment": The Ban on Torture in the Wake of September
11, 81 Tex. L. Rev. 2013, 2013-17 (2003).

[25] Other authors have expressed this concern. See Richard H. Weisberg, Loose
Professionalism, or Why Lawyers Take the Lead on Torture, in Torture, supra note 18, at
299, 300-04; David Luban, Liberalism and the Unpleasant Question of Torture, 91 Va. L.
Rev. (forthcoming Oct. 2005) (manuscript at 37-41, on file with the Columbia Law Review);
Andrew Rosenthal, Legal Breach: The Government's Attorneys and Abu Ghraib, N.Y.
Times, Dec. 30, 2004, at A22.

[26] See Richard B. Bilder & Detlev F. Vagts, Speaking Law to Power: Lawyers and
Torture, 98 Am. J. Int'l L. 689, 691-95 (2004) (noting ethical requirements of the
American Bar Association Model Rules of Professional Conduct and observing that "it is
only these professional qualities that protect against legal advice or advocacy that might
undermine the national interest in respect for law, or subvert or erode the international
legal order").

 楼主| 发表于 1/18/2018 12:02:04 | 显示全部楼层
     Let me end with afew cautionary remarks about the concept of legal archetype that I have beenusing.
     First, I do notwant to exaggerate the significance of undermining a legal archetype, either ingeneral or in this special case of torture. Undermining an archetype willusually have an effect on the general morale of the law in a given area. It maybecome much harder for us to hang on to a proper sense of why the surroundinglaw is important and to convey that sense to the public. For example, if westart issuing torture warrants, it may be harder to hang on to a proper senseof the importance of the exclusionary rule for involuntary confessions. Or if"inhuman treatment" is not banned from our interrogation centers, itmay be harder to hang on to the conviction that flogging is not an acceptablepunishment. But I am not saying that all this surrounding law necessarilyunravels the instant we diminish the force of the archetype. It is more thateach of the surrounding provisions will be kind of thrown back on its ownresources and each will be only as resilient (in the face of attempts atrepeal, amendment, or redefinition) as the particular arguments that can besummoned in its favor. It will lose the benefit of the archetype'sgravitational force. It will derive less or it will derive nothing from themore general sense of the overall point of this whole area of law, previouslyepitomized in the archetype.
     It is possiblethat our sense of the purpose, policy, or principle behind the area of law inquestion will find another archetypeif the existing archetype is damaged. But remember that archetypes do dualduty:
     They do not justepitomize the spirit of the law; they also contribute to it with their primarynormative force. So any attempt to find a second archetype when the firstarchetype is damaged is not just like finding a new logo for a corporation.Instead, it involves a damaged policy or an injured principle going in searchof a compromised archetype to enable us to retrieve and protect whatever isleft of the broken spirit of the law.
      Second, I shouldnot exaggerate the significance of something being an archetype. From anormative point of view, archetypes might be good or bad; they may bearchetypal of good law or bad law. Lochner v. New York[1]is or was archetypal of a certain approach to economic regulation which   married  the  freedom-of-contractprovisions   of  the  U.S. Constitution to the dogmas of laissez-faire economics, and thatarchetype was discredited when the general legal doctrine was discredited.[2]Indeed, the shock to the system of disrupting or undermining an archetype maywell be part of an effective strategy for necessary legal reform. An archetypeis only as important as the spirit of the area of surrounding law that itepitomizes. And it is up to us to make that estimation.
      Of course,natural law ideas may determine our judgment of the importance of a givenarchetype and the area of law it stands for. That is certainly the case withtorture. I believe-and I hope that most of my readers share this belief-thatthe prohibition on torture does epitomize something very important in thespirit and genius of our law, and that we mess with it at our peril. It is not somethingto be taken lightly, if we take seriously what I have referred to as the moregeneral policy of breaking the link between law and brutality. I also thinkthat what I have referred to as the general dissociation of law from brutalityhas a natural law basis, too. But again, that is not why I call the prohibitionon torture an archetype. Archetype is a structural idea; natural law (or lessgrandly, our basic moral sense) comes into play to determine the importance ofthe structures involved, as well as the value of our loss if an archetype isdamaged.
      One finalcaveat. There are all sorts of reasons to be concerned about torture, and I amunder no illusion that I have focused on the most important. The most important issue about torture remains themoral issue of the deliberate infliction of pain, the suffering that results,the insult to dignity, and the demoralization and depravity that is almost alwaysassociated with this enterprise whether it is legalized or not. Theissue of the relation between the prohibition on torture and the rest of thelaw, the issue of archetypes, is a second-tier issue. By that I mean it doesnot confront the primary wrongness of torture; it is a second-tier issue likethe issue of our proven inability to keep torture under control, or thefatuousness of the suggestion made by Professor Dershowitz and others that wecan confine its application to exactly the cases in which it might be thoughtjustified. Given that we are sometimes tongue-tied about what is really wrongwith an evil like torture, work at this second tier is surely worth doing. Orit is surely worth doing anyway, as part of the general division of labor, evenif others are managing to produce a first-tier account of the evil.[3]
     I have found thissecond-tier thinking about archetypes helpful in my general thinking about law.I have found it helpful as a way of thinking about what it is for law tostructure itself and present itself in a certain light. I have found it helpfulto think about archetypes as a general topic in legal philosophy, as acorrective to some of the simplicities of legal positivism, and as aninteresting elaboration of Dworkin's jurisprudence. Most of all, I have foundthis exploration helpful in understanding what the prohibition on torturesymbolizes. By thinking about the prohibition as an archetype, I have been ableto reach a clearer and more substantive sense of what we aspire to in ourjurisprudence: a body of law and a rule of law that renounces savagery and astate that pursues its purposes (even its most urgent purposes) and secures itscitizens (even its most endangered citizens) honorably and without recourse tobrutality and terror.

[1] 198 U.S. 45 (1905).

[2] See, e.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 392-93(1937).

[3] See, e.g., Sussman, supra note 143, at 1.

 楼主| 发表于 1/20/2018 21:01:39 | 显示全部楼层
In 1994, The United States Criminal Code was amended to provide that
    [whoever outside the United States commits or attempts to
    commit torture shall be fined under this title or imprisoned
    not more than 20 years, or both, and if death results to any
    person from conduct prohibited by this subsection, shall be
    punished by death or imprisoned for any term of years or for
    life. [1]

[1] 18 U.S.C. § 2340A(a) (2000).

 楼主| 发表于 1/20/2018 21:03:50 | 显示全部楼层
United States v. Bailey, 444 U.S. 394, 423 (1980) (Blackmun, J.,
dissenting) :" Failure to use reasonable measures to protect an inmate from violence inflicted by other inmates also constitutes cruel and unusual punishment. Homosexual rape or other violence serves no penological purpose. Such brutality is the equivalent of torture, and is offensive to any modern standard of human dignity."

 楼主| 发表于 1/20/2018 21:04:28 | 显示全部楼层
Estelle v. Gamble 429 U.S. at 103 (1890), which states:
An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical torture or a lingering death, the evils of most immediate concern to the drafters of the Amendment.

 楼主| 发表于 1/20/2018 21:06:09 | 显示全部楼层
Section 2340 of theCriminal Code adopts the language of the Senate's understanding and definestorture as "an act committed by a person acting under the color of lawspecifically intended to inflict severe physical or mental pain or suffering(other than pain or suffering incidental to lawful sanctions) upon anotherperson within his custody or physical control."[1]

[1] 18 U.S.C. § 2340 (2000).

 楼主| 发表于 1/22/2018 00:04:06 | 显示全部楼层
the World Medical Association's 1975 Guidelines for Medical Doctors Con-
cerning Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment in
Relation to Detention and Imprisonment [hereinafter Tokyo Declaration].
     South Africa is a signatory of the Tokyo Declaration, which is a key international
agreement on medical ethics. The Tokyo Declaration reads in its entirety:
     It is the privilege of the medical doctor to practice medicine in the service of
     humanity, to preserve and restore bodily and mental health without distinction
     as to person, to comfort and to ease the suffering of his or her patients. The
     utmost respect for human life is to be maintained even under threat, and no use
     made of any medical knowledge contrary to the laws of humanity. For the pur-
     pose of this Declaration, torture is defined as the deliberate, systematic or wan-
     ton infliction of physical and mental suffering by one or more persons acting
     alone or on the orders of any authority, to force another person to yield infor-
     mation, to make a confession or for any other reason.
     1. The doctor shall not countenance, condone or participate in the practice of
     torture or other forms of cruel, inhuman or degrading procedures, whatever
     the offense of which the victim of such procedures is suspected, accused or
     guilty, and whatever the victim's beliefs or motives, and in all situations, includ-
     ing armed conflict and civil strife.
     2. The doctor shall not provide any premises, instruments, substances or
     knowledge to facilitate the practice of torture or other forms of cruel, inhuman
       or degrading treatment or to diminish the ability of the victim to resist such
     3. The doctor shall not be present during any procedure during which torture
     or other forms of cruel, inhuman or degrading treatment is used or threatened.
     4. A doctor must have complete clinical independence in deciding upon the
     care of a person for whom he or she is medically responsible. The doctor's
     fundamental role is to alleviate the distress of his or her fellow men, and no
     motive whether personal, collective or political shall prevail against the higher
     5. Where a prisoner refuses nourishment and is considered by the doctor as
     capable of forming an unimpaired and rational judgment concerning the conse-
     quences of such a voluntary refusal of nourishment, he or she shall not be fed
     artificially. The decision as to the capacity of the prisoner to form such a judg-
     ment should be confirmed by at least one other independent doctor. The con-
     sequences of the refusal of nourishment shall be explained by the doctor to the
     6. The World Medical Association will support, and should encourage the in-
     ternational community, the national medical associations and fellow doctors, to
     support the doctor and his or her family in the face of threats or reprisals re-
     sulting from a refusal to condone the use of torture or other forms of cruel,
     inhuman or degrading treatment.

 楼主| 发表于 1/22/2018 00:17:24 | 显示全部楼层






 楼主| 发表于 1/23/2018 15:01:02 | 显示全部楼层
本帖最后由 郭国汀 于 1/23/2018 15:20 编辑

German criminal procedure does not have a rule against hearsay, so being in possession of the transcripts was enough to trigger the obligation of the government to reveal all exculpatory evidence in its possession. German evidence rules are not notably strict, the Rechtsstaatsprinzip, roughly translatable as the "rule of law principle," requires that no evidence acquired by brutality or coercion be considered by a court, regardless of which side of the case it benefits. This principle of constitutional scope finds statutory expression in the German Code of Criminal Procedure, Section 136a,[1]  Any coerced evidence-and not just self-incriminating evidence-must be excluded.[2]   However, Moroccan government has felt free to use information acquired by torture in its terrorism trials.[3]

In the United Kingdom, some of the terrorismsuspects may have been detained on the basis of information acquired throughtorture or cruel, inhuman, or degrading treatment of detainees at Guantanamo. In A and Others v. Secretary of Statefor the Home Department,[4]some of those who had been detained on security certificates appealed thesedecisions to the Special Immigration AppealsCommission (SIAC),[5]which allowed their security certifications to stand. On appeal from SIAC tothe Court of Appeal, the petitioners objectedbecause evidence acquired by torture of third parties had contributed to the"reasonable suspicion" that they were terrorists.

[1] German Code of Criminal Procedure, § 136a. [Prohibited Methods of Examination]:

      1. The accused's freedom to make up his mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis. Coercion may be used only as far as this is permitted by criminal procedure law. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall be prohibited.
      2. Measures which impair the accused's memory or his ability to understand shall not be permitted.
      3. The prohibition under subsections (1) and (2) shall apply irrespective of the accused's consent. Statements which were obtained in breach of this prohibition shall not be used, even if the accused agrees to their use. Available in translation at .

[2] In addition to the rule of law principle, which would surely find a grievous violation of human dignity in using information acquired by torture, there is also the evidentiary principle of proportionality, which weighs the magnitude of a rights violation in acquiring the information to be used as evidence at trial against the importance of the information and the seriousness of the charge. A violation of human dignity would be hard to take lightly, given the central importance of the principle in German constitutional law. In addition, German courts are guided by principles of judicial integrity to not use evidence whose acquisition would cast doubts on the fairness of the judicial process. These three principles taken together would surely result in the exclusion of evidence acquired by torture, even if not torture performed on the accused.

[3].U.S. Department of State, 2004 Country Reports on Human Rights Practices, section on Morocco, available at , released 28 February 2005.

[4] A and Others v. Secretary of State for the Home Department,[2004] EWCA CIV 1123, [2004] All ER (D) 62 (Aug), (Approved judgment), IIAugust 2004.

[5] The Special Immigration Appeals Commission (SIAC) is atribunal that has the power to review immigration- related detentions. The 2001Anti-Terrorism, Crime and Security Act allows the home secretary to issue asecurity certificate and detain a person, but the statute allows the persondetained to appeal to SIAC to challenge the detention. Given the language ofthe statute, however, SIAC's review is limited to determining whether the homesecretary in fact had "reasonable suspicion" that the person inquestion was a terrorist. SIAC, as a result, is operating with a low standard,and not surprisingly, has upheld all but one of the security certificatesappealed to it thus far.

 楼主| 发表于 1/23/2018 16:27:49 | 显示全部楼层
本帖最后由 郭国汀 于 1/23/2018 17:02 编辑

India law and practice against torture
Amnesty International has received reports indicating that, as of the year 2000, torture is "widespread or persistent" inapproximately seventy states.[1] Regarding India as follows: The law prohibits torture, and confessions extracted by force are generally inadmissible in court; however, torture is common throughout the country, and authorities often use torture during interrogations. Although police officers are subject to prosecution for such offenses under Section 302 of the Penal Code, the Government often fails to hold them accountable.[2]the police in that state resorted to torture in a high percentage of cases. The Chairman of India's National Human Rights Commission has said, "Daily the Commission receives petitions alleging the use of torture, and even of deaths in custody as a result of the acts of those who are sworn to uphold the laws and the Constitution and to ensure the security of its citizens."[3]the Supreme Court of India observed in Mullin v Union Territory of Delhi:[4]
      Now obviously, any form of torture or cruel, inhuman or degrading treatment
      would be offensive to human dignity and constitute an inroad into this right to live
      and it would, on this view, be prohibited by Article 21 unless it is in accordance
      with procedure prescribed by law, but no law which authorises and no procedure
      which leads to such torture or cruel, inhuman or degrading treatment can ever stand
      the test of reasonableness and non-arbitrariness: it would plainly be
      unconstitutional and void as being violative of Articles 14 and 21.[5]

Section 197 of India's Code of Criminal Procedure permits the governments of India's states (which control the police forces) to forbid prosecution of public servants employed by the states. Further, state statutes imposing procedural roadblocks on the prosecution of police officers.

Section 25 of the Indian Evidence Act (1872) forbids using confessions made to police officers as evidence of crime, apparently to remove the incentive for police to engage in torture: However, § 27 of the same act provides:
      [When any fact is deposed to as discovered in consequence of information received
      from a person accused of any crime, in the custody of a police-officer, so much of
      such information, whether it amounts to a confession or not, as relates distinctly to
      the fact thereby discovered, may be proved]

[1]Amnesty International, Campaign Launch Report: Take a Step to Stamp Out Torture (Amnesty 2000), available online at  (cited Mar 25, 2001).
[2] US Department of State, 1999 Country Reports on Human Rights Practices 2335 (2000).
[3] J. Venkastesan, India: National Human Rights Connnission Urges Government to Ratify UN Torture Convention, Hindu (Jun 26, 2000).
[4] AIR 1981 SC 746.
[5] Id at 753.

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