Juan Cole: Why the Founding Fathers Thought Banning Torture Foundational to the US Constitution

[eridani]

http://readersupportednews.org/opinion2/277-75/27429-why-the-founding-fathers-thought-banning-torture-foundational-to-the-us-constitution

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.

[woo me with science]

1. K&R

[blkmusclmachine]

2. ,

,

[enough]

3. Thank you Juan Cole. Thanks for posting, eridani. (nt)

[countryjake]

4. Excellent article!

Last line says it all...

"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."


Recommended!

[Fred Sanders]

5. Which again points out the sheer criminality of Bush and Company. Who was the fucking dictator?

The one that brings the nation healthcare for all, or the one who brings secret torture for some and shame for the nation?

The Obama administration can not prosecute these alleged war criminals...... yet......the mass media and the stubborn remnants of the war criminal administration still in government will not allow it, why do the Obama bashers on the left not get that?

How many calls from politicians or the mass media do you see for prosecution.....that can be changed with relentless reminders of what made America exceptional.....hint...it was not embracing torture.

[woo me with science]

6. Failure to prosecute equals complicity. Period.

[Jappleseed]

7. So where is the Tea Party on all this?

Are they not supposed to be all about the founding fathers?

[raouldukelives]

8. Just one more reason for conservatives to loathe TJ.

While they are trying as best they can to turn us into a corporate theocracy, those old words of his still fill some people with resolve to stand against such efforts. May they never succeed in removing him from our history.

[lunasun]

9. But they are trying in school books!