Why the Founding Fathers thought banning Torture Foundational to the US Constitution

By Juan Cole | —

I have argued on many occasions that the language of patriotism and appeal to the Founding Fathers and the constitution must not be allowed to be appropriated by the political right wing in contemporary America, since for the most part right wing principles (privileging religion, exaltation of ‘whiteness’ over universal humanity, and preference for property rights over human rights) are diametrically opposed to the Enlightenment and Deist values of most of the framers of the Unites States.

We will likely hear these false appeals to an imaginary history a great deal with the release of the Senate report on CIA torture. It seems to me self-evident that most of the members of the Constitutional Convention would have voted to release the report and also would have been completely appalled at its contents.

The Bill of Rights of the US Constitution is full of prohibitions on torture, as part of a general 18th century Enlightenment turn against the practice. The French Encyclopedia and its authors had agitated in this direction.

Two types of torture were common during the lifetimes of the Founding Fathers. In France, the judiciary typically had arrestees tortured to make them confess their crime. This way of proceeding rather tilted the scales in the direction of conviction, but against justice. Pre-trial torture was abolished in France in 1780. But torture was still used after the conviction of the accused to make him identify his accomplices.

Thomas Jefferson excitedly wrote back to John Jay from Paris in 1788:

“On the 8th, a bed of justice was held at Versailles, wherein were enregistered the six ordinances which had been passed in Council, on the 1st of May, and which I now send you. . . . By these ordinances, 1, the criminal law is reformed . . . by substitution of an oath, instead of torture on the question préalable , which is used after condemnation, to make the prisoner discover his accomplices; (the torture abolished in 1780, was on the question préparatoire, previous to judgment, in order to make the prisoner accuse himself;) by allowing counsel to the prisoner for this defence; obligating the judges to specify in their judgments the offence for which he is condemned; and respiting execution a month, except in the case of sedition. This reformation is unquestionably good and within the ordinary legislative powers of the crown. That it should remain to be made at this day, proves that the monarch is the last person in his kingdom, who yields to the progress of philanthropy and civilization.”

Jefferson did not approve of torture of either sort.

The torture deployed by the US government in the Bush-Cheney era resembles that used in what the French called the “question préalable.” They were being asked to reveal accomplices and any further plots possibly being planned by those accomplices. The French crown would have argued before 1788 that for reasons of public security it was desirable to make the convicted criminal reveal his associates in crime, just as Bush-Cheney argued that the al-Qaeda murderers must be tortured into giving up confederates. But Jefferson was unpersuaded by such an argument. In fact, he felt that the king had gone on making it long past the time when rational persons were persuaded by it.

Bush-Cheney, in fact, look much more like pre-Enlightentment absolute monarchs in their theory of government. Louis XIV may not have said “I am the state,” but his prerogatives were vast, including arbitrary imprisonment and torture. Bush-Cheney, our very own sun kings, connived at creating a class of human beings to whom they could do as they pleased.

When the 5th amendment says of the accused person “nor shall be compelled in any criminal case to be a witness against himself” the word “compelled” is referring to the previous practice of judicial torture of the accused. Accused persons who “take the fifth” are thus exercising a right not to be tortured by the government into confessing to something they may or may not have done.

Likewise, the 8th Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” is intended to forbid post-sentencing torture.

The 8th Amendment was pushed for by Patrick Henry and George Mason precisely because they were afraid that the English move away from torture might be reversed by a Federal government that ruled in the manner of continental governments.

Patrick Henry wrote,

“What has distinguished our ancestors?–That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany.”

It was objected in the debate over the Bill of Rights that it could be ignored. George Mason thought that was a stupid reason not to enact it:

“Mr. Nicholas: . . . But the gentleman says that, by this Constitution, they have power to make laws to define crimes and prescribe punishments; and that, consequently, we are not free from torture. . . . If we had no security against torture but our declaration of rights, we might be tortured to-morrow; for it has been repeatedly infringed and disregarded.

Mr. George Mason replied that the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.”

It was the insistence of Founding Fathers such as George Mason and Patrick Henry that resulted in the Bill of Rights being passed to constrain the otherwise absolute power of the Federal government. And one of their primary concerns was to abolish torture.

The 5th and the 8th amendments thus together forbid torture on the “question préparatoire” pre-trial confession under duress) and the question préalable (post-conviction torture).

That the Founding Fathers were against torture is not in question.

Fascists (that is what they are) who support torture will cavil. Is waterboarding torture? Is threatening to sodomize a man with a broomstick torture? Is menacing a prisoner with a pistol torture?

Patrick Henry’s discourse makes all this clear. He was concerned about the government doing anything to detract from the dignity of the English commoner, who had defied the Norman yoke and gained the right not to be coerced through pain into relinquishing liberties.

Fascists will argue that the Constitution does not apply to captured foreign prisoners of war, or that the prisoners were not even P.O.W.s, having been captured out of uniform.

But focusing on the category of the prisoner is contrary to the spirit of the founding fathers. Their question was, ‘what are the prerogatives of the state?’ And their answer was that the state does not have the prerogative to torture. It may not torture anyone, even a convicted murderer.

The framers of the Geneva Convention (to which the US is signatory) were, moreover, determined that all prisoners fall under some provision of international law. René Värk argues:

“the commentary to Article 45 (3) asserts that ‘a person of enemy nationality who is not entitled to prisoner-of-war status is, in principle, a civilian protected by the Fourth Convention, so that there are no gaps in protection’.*32 But, at the same time, it also observes that things are not always so straightforward in armed conflicts; for example, adversaries can have the same nationality, which renders the application of the Fourth Convention impossible, and there can arise numerous difficulties regarding the application of that convention. Thus, as the Fourth Convention is a safety net to persons who do not qualify for protection under the other three Geneva Conventions, Article 45 (3) serves yet again as a safety net for those who do not benefit from more favourable treatment in accordance with the Fourth Convention.”

Those who wish to create a category of persons who may be treated by the government with impunity are behaving as fascists like Franco did in the 1930s, who also typically created classes of persons to whom legal guarantees did not apply.

But if our discussion focuses on the Founding Fathers, it isn’t even necessary to look so closely at the Geneva Conventions.

Thomas Jefferson wrote in the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The phrase “all men” means all persons of any nationality.

We know what the Founding Fathers believed. They believed in universal rights. And they believed in basic principles of human dignity. Above all, they did not think the government had the prerogative of behaving as it pleased. It doesn’t have the prerogative to torture.

——

Related video:

“Senate Torture Report Will Condemn CIA | msnbc”

45 Responses

  1. Professor Cole, you know full well that torture is not used to extract the truth, but to make the victim say what the torturer wants him to say. I believe you also know that Cheney and Co. needed their victims to admit to the crimes that Cheney and Co. in fact committed to usurp the US Government.
    DD

    • Dare one say it? Lest we forget, even the Heartland understands that “The purpose of torture is torture,” simply that: “The Purpose Of Torture Is Torture:
      Blowing up the ticking bomb myth,” link to boiseweekly.com

      But Jack Bauer is such a Righteous Dude…

  2. Excellent article not only about torture, but about the importance of taking back the Founding Fathers political theory from the right wing.

    An important book describes how Thomas Jefferson and James Madison pulled off a constitutional revolution through the ballot box. The principles of the constitution, such as “all men are created equal”, the bill of rights, and separation of powers, were under attack from Alexander Hamilton and the efforts of aristocrats to turn the US into a monarchy.

    The founding fathers hated factions and parties and saw them as destroying the constitution. Here is John Adams calling them the greatest evil

    “There is nothing I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This in my humble apprehension is to be dreaded as the greatest political evil under the constitution.” John Adams

    What we have today is rule by factions. The military industrial surveillance complex, lobbyists, the Supreme Court and the legislative branch are factions in the definition understood in the eighteenth century. The Federalist Papers were written to provide background for the states to ratify the constitution.

    In Federalist 10, James Madison defines a faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community”.

    The book

    The American Revolution of 1800: How Jefferson Rescued Democracy from Tyranny and Faction – and What This Means Today by Dan Sisson (Author), Thom Hartmann (Contributor)

    • “There is nothing I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This in my humble apprehension is to be dreaded as the greatest political evil under the constitution.” John Adams

      Given our ruling duopoly of Democratic and Republican oligarchs, no problem there, John. RIP

  3. Great post!

    Almost certainly the wicked anti-Islam, anti-Qur’an, leader of ISIS was partly or wholly radicalized from the harsh treatment under American forces after the Iraq 2003 invasion and so were many other ISIS members and perhaps other ISIS leaders.
    Al-Baghdadi

  4. Here is what I posted on dailykos.com as a follow up to this article about torture and the twisted dialogue in the US that uses the language of the founders to hide criminal behavior.

    “Founding Fathers – banning Torture Foundational to constitution”
    link to dailykos.com

  5. It is long past due that Americans of lefty political orientation start to call out the GOP for its blatant anti-Americanism. This discussion of torture should be read by all Democrats in public office. Maybe we constituents ought to send them the link.

  6. General George Washington demanded that American soldiers treat their captives with respect. According to David Fischer, writing in his book Washington’s Crossing, “He [Washington] often reminded his men that they were an army of liberty and freedom, and that the rights of humanity for which they were fighting should extend even to their enemies.” “Even in the most urgent moments of the war, these men were concerned about ethical questions. . . .” After one battle, “. . .Washington passed a wounded British soldier and ‘paused to praise a gallant defence (sic) and to assure the man that everything the camp could give the victims of the action would be issued.’ He posted sentries on the battlefield to keep stragglers from robbing the wounded British soldiers.”
    “An American policy on prisoners emerged after the battle of Trenton.”
    “And they chose a policy of humanity. . . .”

    The real victim of refusal to prosecute those who authorized torture is America.

  7. What is simultaneously sad, amazing, and revolting, is that the American government, self-professed Policeman of the World, needs to be reminded of the obvious: torture is wrong. Even American exceptionalism does not grant the government special dispensation from the norms of the civilized world.

    • Have you been watching the news that has been highlighting how American policemen approach their work these days? link to mashable.com , and stuff like this, link to en.wikipedia.org, and in case anyone forgets the nature of “corruption” and the so very obvious “moral hazards” and miserable behaviors that characterize our species, here’s a kind of Hangman’s History of Chicago, which is hardly alone in the reality of how “rule of law” works in a “democracy:” link to en.wikipedia.org Check out the kind of policing done over all those generations, including the “Summerdale Scandal.”

      “Policeman of the world?” Gets into all kinds of categorical and definitional issues, doesn’t it?

  8. I’d be surprised if torture was not already used by the US outside of the so-called GWOT. The drug war has been the typical area of extension. I have no evidence, but there may be an opportunity for an intrepid investigator to make a name for his/herself by looking into that.

  9. Wasn’t “all men” understood to mean “all free (or white) men”? This is unfortunately a loophole available to those who want to justify (even if just to themselves, or to each other, i.e. other Republicans) having a class of persons to whom the law does not apply.

  10. Exposing the hypocricy of those who would be apologists for torture does not need this excellent historical perspective. The US tried Japanese military personnel after WWII for war crimes because those Japanese individuals had been responsible for waterboarding allied military.

    So it is OK to waterboard if George Bush or Dick Chaney says so, but it’s not OK when we go back to 1945.

    More to the point, I’m curious, given this fairly recent history to know why the GOP want to use state secrecy to protect people who would have been war criminals in 1945.

    • First, good post Juan. If we were a defeated power and the Nuremburg Principles applied, the Bushes, Cheneys, Yoos, etc., would possibly be hung. And the Lindy Englands and various soldiers, doctors, agents, guards, and yes, even members of the media, turned sadists would be sought out by the equivalent of Israeli Nazi hunters, and imprisoned, and rightly so.

      But to answer your question Mary, the GOP has long since lost its way and taken the country with it. The history is too long to rehearse here, but in the past fifty years, in a nutshell, we have morphed from a society able to come together when basic essential facts are presented to us (e.g., torture happened and people must be punished; the environment is in free fall and needs protection; a strong social safety net protects us all and helps our economy), to one where the “you did not really see what you just saw” industry (driven by confusionists in the media, assorted think tanks, and the Tea Party) holds sway. Hence GOP talking points such as “torture kept America safe” (and yes, they actually said this – see Sen. Chambliss of Georgia, etc.)

      I have come to merely loathe the Dems, but, as I’ve posted in comments here before, I see a day where the GOP will simply prove so destructive that it will need to be outlawed. But if Obama protects these creatures then, frankly, we should arrest him too.

  11. When persons have an ambiguous status, or places are under ambiguous jurisdiction:

    Civilization asks,”Which system of law shall we apply?”

    Barbarians eagerly claim, “Here, we are beyond any law!”

  12. Another element beyond monarchical practices of torture, I suspect, beneath the founding fathers’ the insistence on due process and habeas corpus, and their rejection of torture are the procedures of the Holy Office, a.k.a. The Inquisition. Which institution learned from the other — ecclesiastic or royal — is perhaps a moot point.

  13. Why should some rich man’s son of limited capacity and an aging evil legend-in-his-own-mind go unpunished for blatant and heinous crimes against our once great country?

  14. Time for a John Yoo interview. Cue Colbert or Stewart, turkey basters and syringes for set decorations just to set the mood…
    Seriously, he has to answer.

  15. Although I am in full agreement with the article and most comments, note that the Constitution made exceptions in military situations. “Letters of reprisal” authorized privateer attacks upon specified targets (usually pirate ships) which might hold innocent persons; they were non-specific death warrants, necessitated by a military circumstance that would certainly result in many further casualties and crimes, if apprehension and trial were required as in civilian justice. I dislike such cases, but they need to considered carefully so as to prevent their abuse.

    Most would agree, at least when under attack, that some circumstances of defense justify deadly force. One can imagine the (not very likely) situation in which the prisoner certainly conceals information that will save hundreds or thousands of lives, and if the information could not be obtained otherwise (for example by drugs or deception), few would argue that a civilized state should let so many others die so as to refrain from torture. But we know that in practice detainees generally do not have the information desired, or it cannot be extracted from them, or it is not so useful, or the risk is very uncertain, etc., so that there is a slippery slope from acknowledging the potential necessity, down to torturing large numbers on flimsy pretexts. Those who do not respect human rights will sometimes be in power and will quickly descend that slope in secret, without ironclad prohibitions and public scrutiny. That, it seems to me, is sufficient cause to almost prohibit torture, and sufficient cause to prohibit secret torture, or torture by foreign agencies. The sad thing is that it does not really negate the morality of an exception in the extreme case, yet every power that tortures believes or claims that it is using that exception. So I think that discussion should consider ironclad moral boundaries of the exception case, if we can find them, rather than declare absolutes, unless or until we have confidence that non-torture techniques can be sufficient if such cases occur.

    • “full agreement,” Joe is in, except for all the exceptional exceptions and a relatively dense recapitulation of all those idiot Talking Points and dissimulations that are the “defense” put up by a bunch of a__holes that succeeded only in proving, again, that “the purpose of torture is torture,” and that as far as “gaining valuable intelligence,” well, gee, “no such thing ever happened!” Nice subtle pitch, though…

      Yeah. “most would agree,” some say at least, that there’s the “exigiency” excuse for all this abuse, an excuse (sic) or “defense” that exists only by reference to convenient, inventive, hypothetical horribles. Is there such a defense to the charges of Traitorism from the releasing, with explication of what it all means, where it’s sited, and where it appears to be going, of Secret Embarrassing Cables and other evidentiary materials resulting from the maybe inevitable (given human nature) amassing of Dark Power by our own shameless cowardly Dark Tower Panopticonians?

      And would I mistake that Joe also takes the position that since there’s this self-declared GWOT a’runnin’, that everywhere and everywhen and everyone is on, in, under, around, beside, and included willy-nilly, forever, in that Grand Global Interoperabbabbbleable Nutwork-Centric Battlefieldspace, right? So everyhow provides all the everywhy that’s needed, and everything is all Legal and Wise… What ever happened to that idiot phrase, “unYooful Enima Combatants?” Waiting for the Riots, post-redacted-tiny-summary-of-Organized-Incompetent-Imperial-Badness release of 0.007 percent of an indicated 6.5 million “pages”… Not that more “blowback” has not likely been Idiotically and maybe intentionally inflated, waiting for the other kind of release…

  16. Pursuant to the Constitution, the Bill of Rights, and the Nuremberg era precedents, The Nurnberg Trial, 6 FRD 69 (1946), government officials including judges can be prosecuted for aiding and abetting such criminal acitivity. See, e.g., U. S. v Alstötter et al. (“The Justice Case”) 3 T.W.C. 1; 6 L.R.T.W.C. 1; 14 Ann. Dig. 278 (1948) (these are cases holding judges liable).

    See also Application of Yamashita, 327 US 1; 66 S Ct 340-379; 90 L Ed 499 (1946), and Application of Honmo, 327 US 759; 66 S Ct 515-517; 90 L Ed 992 (1946) (these are cases holding government officials liable for acts of subordinates, and imposing death penalty for those acts).

    A similar culpability concept applies to private sector perpetrators, United States v Park, 421 US 658, 672; 95 S Ct 1903; 44 L Ed 2d 489 (1975) (holding private sector official, the company president, criminally liable for subordinates’ illegal acts).

    • But that was victors’ justice. Justice is not a factor when the victor and the violator are one and the same.

      • I agree with you, “Justice is not a factor when the victor and the violator are one and the same.” But disagree on the view that the Nuremberg Trials were merely “victor’s justice.” The court followed already existing rules of law making higher officials responsible, even corporation presidents, United States v Dotterweich, 320 US 277; 64 SCt 134; 88 LEd 48 (1943), and of course, the 1920’s treaties banning wars of aggression.

  17. What’s so ironic is that Republicans supposedly care about the budget. But the budget for torture, almost by definition, just grows and grows. The paranoia typical of a Stalin or Saddam Hussein, and an ever-growing enemies list that results from confessions under torture are not things Americans need.

  18. Great article.

    On the Bill of Rights debate, is their a single book that covers this history? I see there is “The Bill of Rights: A Documentary History” that is over 1200 pages. I’m hoping for something a little shorter that covers the most important stuff. Or am I gonna have to buy that beast?

  19. Torture is not unconstitutional in and of itself.

    In Brown versus Mississippi, the U.S. Supreme Court in 1936 held that confessions extracted via torture by police were inadmissible as evidence in a criminal prosecution under the Due Process Clause of the Fourteenth Amendment.

    While the proofs extracted by a confession induced via torture are always inadmissible on constitutional grounds, the torture could conceivably be legalized by legislative bodies in certain situations for other police or military use.

    • Ahhhhsoooooo……..

      My words, forced from me under duress (aka torture), cannot be used against me in court, BUT the act of torture itself may well be permissible if some hot-headed highway patrolman thought (sic) I might be withholding information that could save lives (or protect property, ensure his safety, etc, etc).

      That would be….tortured logic….but when sufficient force is applied to any situation it generally yields.

      There was plenty of CIA reform back in the 1970’s, which included the FISA courts, which at this point can only be considered a rubber-stamp. But organizations like CIA only function well (relatively speaking) when they are fueled by self-righteousness. Combined with their insularity, that CIA would backslide was a given, and if any reforms come of this, by nature they will NOT last.

      In terms of genuine reform, there is an interesting bureaucratic initiative to take away CIA Operations and put that function under the military, where we can hope the over-achieving eager beavers normally drawn to CIA can be properly managed with military discipline. This would leave CIA with its original mission from 1948 for “centralizing” the analysis of intelligence.

      This move would go far to make CIA culture a cross between that of a good university and a reporting organization, encouraging rigorous observation and good thinking rather than political manipulation, which frankly, is its current raison d’etre.

    • If torture doesn’t meet the “shocks the conscience” test unclear what does. Chavez v. Martinez provided five votes for bringing a case for less than that.

  20. Yes, indeed. If you ask what the core value of American identity is, of our liberal heritage that distinguished us from our European forebears.. I would say rejection of monarchial privilege and the barbarous practice of torture (common even in England)- I was stunned and horrified by the endorsement and promulgation of torture by the Bush regime, as probably 80% of decent Americans were. It was poison that was spread throughout our military, betraying our most coveted values, and violating every war crimes act. Obama’s great failing was not coming down like a hammer on the scum that pushed and practiced this, including Bush officials, Guantanamo’s Gen. Miller, and 10-15 of our murdering interrogators. We executed Japanese for doing the things our soldiers did in the idiotically named War on Terror. Instead he dithered, frightened of punishing previous officials (to set a dangerous precedent), and allowed this sickness to remain imbedded in military/intelligence circles, leaving decent soldiers tortured by their guilt at beating innocent taxi drivers to death after hanging by their arms for 3 days. Fire Brennan, CIA officials, EVERY dirtbag defending and endorsing these war crimes… and bring back American morality and decency, the most central reason 80% of the world still dreams of coming to America!!!!

  21. I think the essential difference here is that torture is being employed in extrajudicial cases. For me, Agamben’s concept of Homo Sacer provides insight, as the against the nebulous enemy of terrorism has reduced terrorists to a subhuman status, to whom anything can be done. It’s not really torture if they’re not really human.
    Sadly, the democratic rhetoric of the Founders was also flawed in that way, since Black slaves were tortured daily, which was fully endorsed by the law, until Lincoln.

    • I don’t actually believe that judicial torture was practiced on slaves. It was a genocidal institution but its legal space was that of private contract, not Federal practice.

      • Worth discussing. Not so sure that the entire history right up to the Emancipation Proclamation and Jim Crow and the Civil Rights Act don’t show pretty clearly that the federal government, attempting to retain a “union” and further the mercantile interests of the kind of people who “framed the Constitution” for us, also set the frame for the legal space that slavery lived in. See e.g., Dred Scott decision: link to ushistory.org .Slaves were “not really human,” were not part of the “Sovereign people,” and had no legal rights — the only “contracts” I can think of (leaving out indentures) were the sales contracts between slave owners and sellers. As to judicial torture, the federal frame allowed this stuff: link to en.wikipedia.org Small point, in a world full of so many horrors and cruelties…

  22. Many of the men at the centre of the Enlightenment and engaged in creating our Republic were, like me, Freemasons. There is a lot of “conspiracy theory” about that which is, I assure you, totally without foundation. Jefferson, as far as I know, was not a Mason but many of his compatriots were including Washington, Franklin, and many of the men they might have come to know in France.

    I am not suggesting that Masonry shaped the Founders exclusively–let us not forget that King George the Third was also a Mason–but that it was a movement which was very much founded in the Enlightenment very much the way the United States was.

    Torture, I can imagine, was something these men would certainly have discussed when trying to found a new nation.

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