Posted: 2009-07-19

Crime and Circumvent

The eighth amendment to the Constitution is very short and seems to simply tie up a few loose ends around the treatment of individuals suspected of wrong-doing. It talks about fines, bail, and the like. Well, here it is:

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

The Bill of Rights is not a list of the rights that the U.S. government grants to its citizens. It's an acknowledgement that certain inalienable rights are fundamental to all of humanity, and that a civilized government will lay out solemn and specific restrictions upon itself to assure that it never abrogates them. That is why the Bill of Rights doesn't apply much effort to identifying citizens versus non-citizens. These are not rights that the government grants to anyone. These are universal rights and the Constitution prohibits the government doing anything to restrict them — period.

This is why comments recently made by Justice Clarence Thomas seem so inane. He was speaking in Washington to a group of high school students who won special placements in an essay contest. Among other things, he said, "Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?" Of course there is no Bill of Obligations or Bill of Responsibilities. There is no need to apply restrictions against the government so that it will not prevent us fulfilling our responsibilities and obligations. The comment reveals a fantastic ignorance of the Constitution (and this from a Supreme Court Justice). The Bill of Rights prohibits "cruel and unusual punishments" not because our benevolent leaders have deigned to grant us this privilege, but because such a restriction serves to protect these universal rights.

The Constitution is not the only document binding upon Americans that forbids cruel and unusual punishment. The Geneva Conventions (to which the U.S. is a signatory) very specifically forbid torture. Justice Antonin Scalia, in a 2008 interview with Leslie Stahl, rambled a bit but in the end claimed that torture was not a problem as long as it was used to acquire information and not as "punishment." Further, he indicated that there was no widely accepted definition of torture, so it was really a purely academic discussion. Justice Scalia is apparently unaware of The Supremacy Clause which makes The Geneva Conventions binding law in the U.S. Indeed, the Geneva Conventions (and therefore U.S. law) define torture quite clearly and (in five separate sections) forbid it. In other words, those U.S. citizens who engage in torture and those administrators who direct it have committed a crime according to U.S. law, Justice Scalia's uninformed blathering aside.

Recently President Obama, Speaker Pelosi and Senate Majority Leader Reid have made it clear they are not interested in investigating administration participation in these illegal acts. These politicians are denying that this is a "nation of laws." Pelosi and Reid, according to several news reports, may be implicated in this fiasco. If they can quash a congressional investigation and President Obama can protect them by inhibiting a Justice Department investigation, then we have learned an important and tragic lesson: crimes by those in power have no consequences.

This is an old story and I am perhaps revealing my naiveté by being disappointed. I am disappointed by the sheer cowardice. By not investigating, the culprits in power hope to make this problem go away. One could argue that the only way to avoid prosecution would be to amend the constitution and (somehow) unsign the Geneva Conventions; but I think there is a simpler solution. It seems to me that the Congress could address this problem by simply passing a law that makes the penalty for torture $5 per incident. So why doesn't Congress do this if it really thinks that six years of torture by U.S. personnel doesn't warrant review. That means that future torture incidents really won't get in anybody's way.

That's my problem. The government doesn't have the guts to go one way or the other. They won't make the audacious move of trivializing the penalty for torture; but they also won't fulfill their responsibility to investigate the circumstances around these possible crimes. Fortunately, the Congress is not our government. The President is not our government. The Supreme Court is not our government. We are our government. We are ultimately responsible. That is why I have my representative and senators on speed dial. Call your congresspeople and let them know what you want. Do it every few weeks. Be the government you want.

Even better, host a Voice the Constitution reading. Help your neighbors to learn about their Constitution. We are the government and we need to make this right. As a nation of laws, we need to demand that the law be enforced, even if it is enforced against powerful individuals of great privilege.

Julian S. Taylor