Without much examination of the concept, Americans are quick to declare that they live in a civilized society. Indeed, many Americans believe that their country is the most “civilized” country in the world. Without much digression on the arrogance of such a belief, it is sufficient to say that at least the rest of the world has serious doubts as to the accuracy of that position. Those doubts deepen as the United States’ Vice President, Dick Cheney, takes the position that employees of the Central Intelligence Agency (CIA) should be exempt from proposed legislation that would bar the use of cruel and degrading treatment of any prisoners in the custody of the United States. Senator John McCain, a Republican from Arizona, was the principal sponsor of amendment #1977 to the Department of Defense Appropriations Bill. The Senate voted 90-9 in favor of the Amendment over the objection of the Bush Administration. Vice President Cheney tried repeatedly to persuade Senator McCain to modify his proposal so that it would not be a complete ban on inhumane treatment. Last summer, President Bush vowed that he would veto the measure and the Senate prepared for an override. The haunting images of the Abu Ghraib and Guantanamo prisoners are still imbedded in the world psyche as Cheney lobbies for permission to visit yet more torture around the globe.
In 1948 the United Nations General Assembly adopted Resolution 217 A (III) and declared it to be the Universal Declaration of Human Rights. The General Assembly then called upon all member nations to spread the concepts contained therein widely to ensure that across the globe all humankind would be informed of this great document. The second paragraph of the Preamble to the Declaration states:
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, . . .
The Declaration continued in Article 5 to mandate that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” In 1948, the United States was a member of the United Nations and still is. It has not officially denounced the Universal Declaration of Human Rights nor rejected the tenets contained therein.
It should be difficult for anyone to comprehend a request by the Vice President of the United States for permission to use torture. U.S. jurisprudence specifically prohibits the use of coerced confessions and for good reason. The United States Supreme Court has consistently recognized that coerced statements are inherently unreliable and therefore inadmissible at trial. Involuntary confessions are inadmissible under the Due Process Clause because, as Justice Frankfurter eloquently explained, they “offend the community’s sense of fair play and decency.”1 It is still the rule that “ours is an accusatorial and not an inquisitional system.”2 It is hard to imagine a more unreliable statement than one that is obtained through the use of torture.
Perhaps Vice President Cheney longs for the “good old days” when a deputy sheriff in Mississippi who had presided over the beatings of the defendants arrogantly admitted that one had been whipped, “but not too much for a Negro.” The confessions extracted from those defendants were suppressed by the Supreme Court in 1936.3
Is it not the deputy sheriff’s mentality that permeates Cheney’s push to be able to torture detainees under the guise of fighting terrorism? Is Cheney unfamiliar with U.S. jurisprudence or the Universal Declaration of Human Rights?
Almost a century before the passing of the historical resolution by the United Nations, a young utopian socialist and Russian novelist, Fyodor Dostoevsky, prophetically reflected that “We can measure the degree of civilization in a society by entering its prisons.”4
Using Dostoevsky’s magnifying glass to examine the progress made in the United States towards developing a civilized society results in some very disturbing findings. The history of the U.S. criminal (in)justice system is replete with examples of condoned abuses of authority, torture, cruelty and inhumane treatment of the accused and the convicted. During the early colonial period of U.S. history, common use was made of stocks, pillories, whipping posts, ear clipping, branding, and ducking stools to punish transgressors. All of these involved public display and humiliation. Ducking stools were designed and used almost exclusively for women who failed to adhere to the strict social restrictions place on them. Public executions were regularly attended by thousands of onlookers.
By the end of the 17th Century all the colonies had adopted variations of the Slave Codes which gave total physical, psychological, legal and emotional control over the slave to the so-called master. Thus the “law” permitted barbaric methods of punishment. Lynchings were a frequent occurrence as were maimings, castrations, and burnings. These well-attended public gatherings to witness the torture and killing of Black men and women were festive occasions for the thousands who came to observe these events.
The expression of utter disregard for the Bill of Rights and the Universal Declaration of Human Rights by the country’s leaders leaves everyone at risk. We recently witnessed the inhumane treatment to which pretrial detainees in Louisiana’s Jena Correctional Facility were subjected. They were evacuated from Jefferson Parish Prison due to the devastation caused by Hurricane Katrina and then subjected to a barrage of beatings and various types of cruelty. The widespread claims of abuse caused the NAACP Legal Defense Fund and Human Rights Watch to conduct an investigation consisting of hundreds of interviews. Following their investigation these organizations called upon the U.S. Department of Justice to immediately investigate the mistreatment of the detainees at Jena. The overwhelming majority of the detainees are Black while most of the guards are White. Many of the detainees have reported being subjected to constant racial epithets and racist language.
In October 2005, television viewers relived the horror of Rodney King’s televised beating more than a decade earlier as they watched the brutal beating of 64 year old Robert Davis by Louisiana law enforcement personnel from New Orleans’ French Quarter.
Police brutality and torture in New Orleans is not a new phenomenon. In 1973, a group of men and women alleged to be members of the Black Panther Party were captured in New Orleans. Word of their arrest quickly spread throughout the country. Representatives from the police departments of Los Angeles, New York City, and San Francisco rushed to New Orleans and interrogated several of the arrestees in between torture sessions conducted by members of that city’s police department. The torture and interrogations lasted over a period of 4-5 days. Despite the fact that more than one court has found that the statements extracted from the torture victims were inadmissible in court, law enforcement personnel have persisted in harassing them and their families for over thirty years.
From 1972 to 1991, at least 135 arrestees in Chicago were tortured by local police using methods eerily similar to those used by the New Orleans police including beatings, suffocation, and the use of electric shock probes place on the genitals. The horrors of the Chicago arrestees were recently reported before the Inter-American Commission on Human Rights.5 The cruelty of the Chicago Police Department, like that of the New Orleans Police Department, is commonplace.6 It was the brutality of the Chicago Police Department and the resultant coerced confessions that were responsible in part for then Illinois Governor Ryan declaring a moratorium on the death penalty, finding that too many convictions had been obtained through questionable means.
A civilized society cannot tolerate violations of anyone’s human rights, no matter who the accused is or what the accusation may be. Indeed, a civilized society should ensure that the so-called war on terrorism cannot be used as a ruse to ignore or manipulate the “community’s sense of fair play and decency.” The Universal Declaration of Human Rights demands no less from us.
4 The young novelist was uniquely placed to make this observation as he had served nearly five years in a Siberian prison as a political prisoner after the loosely knit political group with which he had affiliated was infiltrated by a special police agent. Originally sentenced to death in 1849, Dostoevsky was successful in having his sentence commuted to hard labor in a Siberian prison.
5 That body noted that, sadly, the United States had not seen fit to submit to the jurisdiction of that body and be guided its well established international norms.
6 In 1969, its members collaborated with the local FBI to plan the assassination of Mark Clark and 20 year old Fred Hampton, leaders of the local chapter of the Black Panther Party for Self Defense. In a pre-dawn raid of their apartment Clark and Hampton were murdered as they lay sleeping. Blueprints of their apartment were supplied by an FBI cooperative, William O’Neal. O’Neal also placed barbiturates in Hampton’s meal the night before the assassination.
* J. Soffiyah Elijah is Deputy Director of the Criminal Justice Institute, Harvard Law School. The views expressed are solely of the author and are in no way associated with Harvard Law School or the Criminal Justice Institute.