Torture

Submitted by kmccook on Fri, 08/27/2004 - 6:15am

LThe American Library Association's resolution against torture.
======
ADOPTED: RESOLUTION AGAINST THE USE OF TORTURE
AS A VIOLATION OF THE ALA'S BASIC VALUES

The ALA Council adopts the RESOLUTION AGAINST THE USE OF TORTURE AS A VIOLATION OF THE AMERICAN
LIBRARY ASSOCIATION'S BASIC VALUES

June 30, 2004

Whereas ALA is among the preeminent defenders of intellectual freedom and
government openness in the US.

Whereas intellectual freedom, our primary value as librarians, cannot be
more seriously violated than by forcing speech or enforcing silence
through systematic violence by government against detained individuals.

Whereas the US government has proven its readiness to use torture (as well
as hooding, shackling, drugging, sleep deprivation, etc.) in the
interrogation of suspected terrorists or their suspected accomplices in
its anti-terrorist legislation Whereas the use of torture and coercive
interrogative practices is inhumane, illegal and destructive of the
democratic sensibilities of a free society, the cultivation of which we as
an Association and as a profession are committed.

Whereas the secrecy which attends the use of torture violates our
commitment to open government and the necessity of true and accurate
information of our government's actions

Whereas the violence of torture violates our commitment to the rule of law
as a protector of the integrity and dignity of the human person Whereas
the barbarity of torture fundamentally violates our commitment to the
preservation of the human spirit

and

Whereas the threat of torture of the use of torture and similar practices
of coercing testimony, confessions, information is, universally condemned
under international law [e.g the Geneva Convention, Articles 3 and 31 and
by the Univeral Declaration of Human Rights, 1948, Article 5 ] and (a)the
Fourth Amendment's right to be free of unreasonable search or seizure
(which encompasses the right not be abused by the police) (b)the Fifth
Amendment's right against self-incrimination (which encompasses the right
to remain silent during interrogations), (c)the Fifth and the Fourteenth
Amendments' guarantees of due process (ensuring fundamental fairness in
criminal justice system), and (d)the Eighth Amendment's right to be free
of cruel or unusual punishment],

Be it resolved that the ALA condemns the use or threat of torture by the
US government as a barbarous violation of human rights, intellectual
freedom, and the rule of law. TheALA decries--along with condemnation of
the practice of torture anywhere--the suggestion by the US government that
under a 'state of emergency' in this country or declared by this country
torture is an acceptable tool in pursuit of its goals.

(see addendum)

submitted by Mark C. Rosenzweig ALA Councilor at large
second Al Kagan

SUPPORTING DOCUMENTATION

The legal basis for this follows, including some explication of issues
raised by these references: ,

*Universal Declaration of Human Rights 1948, Article 5 states: "No one
shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment."

*Article 7 of the International Covenant on Civil and Political Rights
(ICCPR), ratified by 153 countries, including the U.S. in 1992 *Convention
against Torture or Other Cruel, Inhuman or Degrading Treatment or
Punishment (the Convention against Torture), ratified by 136 countries,
including the U.S. in 1994.

*European Convention for the Protection of Human Rights and Fundamental
Freedoms African Charter on Human and Peoples' Rights.

*American Convention on Human Rights [Signed at the Inter-American
Specialized Conference on Human Rights, San JosÈ, Costa Rica, 22 November
1969].

*The 'Laws of War': the prohibition against torture is also fundamental to
international humanitarian law which governs the conduct of parties
during armed conflict.

Article 3 to the Geneva Conventions, for example, bans "violence of life
and person, in particular murder of all kinds, mutilation, cruel treatment
and torture" as well as "outrages upon personal dignity, in particular
humiliating and degrading treatment."

Article 31 of the Fourth Geneva Convention: "No physical or moral coercion
shall be exercised against protected persons, in particular to obtain
information from them or from third parties."

1999 Initial Report of the United States to the U.N. Committee against
Torture: in the United States, the use of torture "is categorically
denounced as a matter of policy and as a tool of state authority No
official of the government, federal, state or local, civilian or military,
is authorized to commit or to instruct anyone else to commit torture. Nor
may any official condone or tolerate torture in any form Every act of
torture [...]" is illegal under the [Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46,
[annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)],
entered into force June 26, 1987]. is illegal under existing federal and
state law, and any individual who commits such an act is subject to penal
sanctions as specified in criminal statutes."

*The US Constitution: Torture violates rights established by the Bill of
Rights.

The U.S. courts have located constitutional protections against
interrogations under torture in
a)the Fourth Amendment's right to be free of unreasonable search or
seizure (which encompasses the right not be abused by the police)
b)the Fifth Amendment's right against self-incrimination (which
encompasses the right to remain silent during interrogations),
c)the Fifth and the Fourteenth Amendments' guarantees of due process
(ensuring fundamental fairness in criminal justice system), and
d)the Eighth Amendment's right to be free of cruel or unusual punishment.
*In numerous cases, the U.S. Supreme Court has condemned the use of force
amounting to torture or other forms of ill treatment during
interrogations, including such practices as whipping, slapping, depriving
a victim of food, water, or sleep, keeping him naked or in a small cell
for prolonged periods, holding a gun to his head, or threatening him with
mob violence. *"Miranda v Arizona: The U.S. Supreme Court in 1966 also
established a rule requiring the police who seek to question detainees to
inform them of their "Miranda" rights to remain silent and to have an
attorney present during the questioning [Miranda v. Arizona, 384 U.S. 436
(1966)]. In explaining the need for this rule, the Court noted the
continuing police practice of using physical force to extract confessions,
citing, as an example, a case in which police beat, kicked and burned with
lighted cigarette butts a potential witness under interrogation. *Torture
would also violate state constitutions, whose provisions generally
parallel the protections set forth in the federal Bill of Rights. Article
4 of the Convention against Torture obligates state parties to ensure that
all acts of torture are criminal offenses under domestic legislation. *The
principal federal law that would apply to torture against detainees is 18
U.S.C. 242, which makes it a criminal offense for any public official to
willfully to deprive a person of any right protected by the Constitution
or laws of the United States. *Neither international nor domestic law
conditions the right not to be subjected to torture on citizenship or
nationality. No detainee held by U.S. authorities - regardless of
nationality, regardless of whether held in the U.S. or in another country,
and regardless of whether the person is deemed a combatant or civilian -
may be tortured. All applicable international law applies to U.S.
officials operating abroad, including the Convention against Torture and
the Geneva Conventions. Some explication relevant to the particular
questions raised by the government's consideration of the use of torture
in its "War Against Terrorism" 1)The prohibition against torture is
universal and covers all countries both regarding U.S. citizens and
persons of other nationalities. 2)The Convention against Torture provides
that any statement that has been made as a result of torture shall not be
invoked as evidence in any proceedings, except against a person accused of
torture as evidence that the statement was made. 3)Under customary
international law as well as under international human rights treaties,
torture or other cruel, inhuman or degrading treatment is prohibited at
all times and in all circumstances. It is a non-derogable right, one of
those core rights that may never be suspended, even during times of war,
when national security is threatened, or during other public emergencies.
4)According to the U.S. government, " U.S. law contains no provision
permitting otherwise prohibited acts of torture or other cruel, inhuman or
degrading treatment or punishment to be employed on grounds of exigent
circumstances (for example, during a "state of public emergency") or on
orders from a superior officer or public authority." 5)The European Court
of Human Rights has applied the prohibition against torture contained in
European Convention on Human Rights in several cases involving alleged
terrorists. As it noted in one case, "The Court is well aware of the
immense difficulties faced by States in modern times in protecting their
communities from terrorist violence. However, even in these circumstances,
the Convention prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the victim's conduct." (Chahal v.
United Kingdom, Nov. 15, 1996) 6)The Committee against Torture, reviewing
Israel's use of torture as a method of interrogation against suspected
Palestinian terrorists, stated, "The Committee acknowledges the terrible
dilemma that Israel confronts in dealing with terrorist threats to its
security, but as a State party to the Convention Israel is precluded from
raising before this Committee exceptional circumstances as justification
for [prohibited] acts" [United Nations Committee against Torture.
"Concluding observations of the Committee against Torture" (1997),
A/52/44,paras.253-260. (15 Nov. 2001).] Some people argue that the goal of
saving innocent lives must override a person's right not to be tortured.
Although such an exception might appear to be highly limited, experience
shows that the exception readily becomes the standard practice. For
example, how imminent must the attack be to trigger the exception and
justify torture - an hour, a week, a year? How certain must the government
be that the detainee actually has the necessary information? The
international community, however, rejected the use of torture even in this
type of case. International human rights law - as well as U.S. law - do
not contain any exceptions to the prohibition against torture.
Respectfully submitted, Mark Rosenzweig ALA Councilor at large.
Al Kagan
SRRT Councilor