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.

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