A War Like No Other Read Online Free PDF

message of “Imprisonment Without Trial,” which demonstrates how even the most well-intentioned president can inadvertently entrench unconstitutional practices if he takes primary responsibility for protecting the rights of unpopular groups. As the essay makes clear, judges can transcend political inertia in a way that officials of the executive branch often cannot.
    In the end, the president’s solution to the hunger strike was to permit the military to force-feed prisoners through the application of physical restraints and feeding tubes. One can only imagine the anguish the president must feel in knowing that hisattempts to solve the problem of Guantánamo have created the need for such grotesque practices. At one point in his career, Obama taught constitutional law, and he should not have been surprised to learn that the dignity of the individual is secured not through Article II of the Constitution, but rather the Bill of Rights.

Prologue to Chapter 7
    Trevor Sutton
    The idea that torture has no place in a civilized society emerged in the Enlightenment and is as old as the American Republic itself. The framers’ ban on “Cruel and Unusual Punishments,” enshrined in the Eighth Amendment, was not an abstract concern: European monarchies routinely and openly prescribed torture-based punishments into the eighteenth century. Even after torture came to be regarded as a barbaric practice in the West, some governments—Imperial Russia in particular—continued to torture dissidents, radicals, and terrorists behind closed doors.
    Although the United States never reached the depravity of the tsars, it is a sad truth that during the eighteenth and nineteenth centuries federal and state officials engaged in practices that today seem self-evidently cruel and unusual. These practices did not take the form of criminal sanctions, where the text of the Eighth Amendment was clearly prohibitive, but rather occurred in the context of police interrogation. This was especially the case in the South during the antebellum and JimCrow eras, where violence was an essential element of racial oppression. Of course, in the cities of the North, too, use of the “third degree” against criminal suspects was routine for much of American history.
    Over the course of the twentieth century, the systemic use of pain-based interrogation techniques in the United States ebbed considerably. Today, there exist statutory prohibitions on torture at both the state and federal levels, and at the level of international law the United States has ratified the United Nations Convention against Torture. Many actors contributed to this decline in officially sanctioned brutality, including civil rights activists, elected officials, the press, and public commissions of inquiry—most famously the Wickersham Commission created by President Herbert Hoover. Nevertheless, the role of the courts in ending torture was essential. Of key importance is the celebrated 1936 case Brown v. Mississippi, in which the Supreme Court unanimously found that a confession extracted through police violence—specifically, flogging—could not serve as evidence of guilt, and that a conviction on such grounds violated the Due Process Clause of the Fourteenth Amendment. Another important development was the 1952 case Rochin v. California, in which the Court overturned the conviction of a defendant who had been forced to vomit up narcotics against his will, on the reasoning that such conduct “shocks the conscience.”
    That the federal judiciary played an important role in limiting the use of torture by state agents is not surprising: many of the scenarios under which official torture commonly arises relate to areas of governance traditionally subject to judicial oversight, such as police interrogation and criminal punishment. But the kind of executive action examined in this chapter, “Torture and Extraordinary Rendition,” does not fall within these comfortable bounds. Rather, the