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White House: We Violated the Constitution, So We Don’t Have to Follow the Constitution

The Eighth Amendment to the United States Constitution reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Bush Administration Torture Justification Memo reads in part:

A second constitutional provision that might be thought relevant to interrogations is the Eighth Amendment. The Eighth Amendment, however, applies solely to those persons upon whom criminal sanctions have been imposed. As the Supreme Court has explained, the Cruel and Unusual Punishments Clause “was designed to protect those convicted of crimes.” Ingraham v. Wright, 430 U.S. 651, 664 (1977). As a result, “Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.” Id. at 671 nAO. The Eighth Amendment thus has no application to those individuals who have not been punished as part of a criminal proceeding, irrespective of the fact that they have been detained by the government.

This statement by the Bush administration is at once profoundly dunderheaded and diabolically twisted. Clearly, the statement that “The Eighth Amendment, however, applies solely to those persons upon whom criminal sanctions have been imposed” cannot be true, since the amendment refers specifically to bail. The authors of the torture justification memo wrench the contention out of its context. Guess what the next sentence of Ingraham v. Wright is? “We adhere to this longstanding limitation and hold that the Eighth Amendment does not apply to the paddling of children as a means of maintaining discipline in public schools.” The justices in the case concluded, “Whatever force this logic may have in other settings, we find it an inadequate basis for wrenching the Eighth Amendment from its historical context and extending it to traditional disciplinary practices in the public schools.”

But that’s small potatoes compared to the rest of the paragraph, which concludes that people put under indefinite detention are not subject to the 8th Amendment to the Constitution because they haven’t been convicted in a court of law. But they haven’t been convicted (much less charged) in a court of law because the writ of Habeas Corpus guaranteed in the Constitution has been denied them. So here’s what this justification for torture by the Bush administration boils down to: because the U.S. Government has violated the constitutional rights of its indefinite detainees in one regard, it can go ahead and violate the constitutional rights of its indefinite detainees in another regard. According to the Bush administration, once the government leaves the Constitution behind, anything goes. Even torture.

Republican moral values.

6 thoughts on “White House: We Violated the Constitution, So We Don’t Have to Follow the Constitution”

  1. J. Clifford says:

    No, no, no. You’ve got it all wrong, see.

    It’s okay for the government to torture people, because it’s not cruel punishment. Punishment can only take place after someone has been convicted of doing something wrong. Without a conviction or a trial, torture is not cruel punishment. It’s just being cruel. The Eighth Amendment clearly implies that cruelty is okay, just so long as it isn’t a punishment.

  2. Tom says:

    So this is what “democracy” is reduced to in the American style: just assume you are an emperor and do whatever you want when you are “elected” president. No more “checks and balances” to put up with, and anyone (including Congress) who doesn’t do your bidding is being unpatriotic, and you can always send the goon squad to make them magically disappear.


    Which, of course, brings me back to my point of no return: What are we citizens supposed to DO about it? Sitting around blogging about it is really getting old. Nothing changes and everyone can do it until the cows come home and still NOTHING CHANGES. These people have usurped our government and we’re allowing it as if it’s okay! Business as usual. So, what if they start dragging dissenting bloggers off to Guantanamo or some other resort area for re-education, is that going to be okay too? Oh, let me write my Congressperson! Oh, wait, i’ve already done that for eight years and nothing has changed . . .

    Guess i’ll go watch tv.

    America has crashed. It’s bloody over. It makes no difference who is in power any more, because they don’t give a shit about anyone but their in-groups (and guess what – we don’t belong). Well, you can kiss any election hopes good-bye because we’ve let this once great bastion of freedom, based on laws and rights, go down the drain of greed and corruption by NOT DOING ANYTHING!

    In fact, why don’t the Republicans just rig this next election too? It’s pretty obvious that they can get away with it and that no one will DO anything but complain about it.

    While we’re at it let’s keep raping the earth, cutting down the old growth forests (stupid trees, who needs ’em), polluting the oceans and bombing people we disagree with. Let’s keep living our own little lives as if nothing is happening besides what we’re doing today and just not worry about all this political stuff – apparently “ya can’t fight city hall”. Hey kids, is your country on the rocks? Just don’t worry about it, since you can’t do anything to change it anyway.

    What a great message for our future (if there is one at this point) citizens (who will be saddled with debt up to their eyeballs, keeping their quality of life firmly in check – and it’ll affect their kids too!).

  3. J. Clifford says:

    No Tom, what you do is you keep at it.

    You, blogging, or writing elsewhere, or talking to other people, as an individual, is going to FEEL futile, but it’s not.

    You’re one of over 300 million Americans. Your voice is NOT going to be the single determining factor. Neither is mine.

    But, you know what? It is a factor. This is like Horton Hears a Who. We all have to keep on screaming, and when we find the person who isn’t lending their voice to this effort, we have to convince them to join us.

    You’re used to, if you watch TV, seeing shows that reach really big audiences and have really big impacts… except that their audiences are passive sheep that are used to letting the TV do all the thinking for them. You can’t expect as one of 300 million people to have the impact of Oprah Winfrey.

    Still, your voice and your vote does count.

    Please, Tom, don’t give up. If you give up, then you make it harder for someone else who is still trying. Carry your weight. If we share the weight, it isn’t as difficult.

    If you keep up this defeatist attitude, YOU are part of the problem.

    And, you know, you’ve been giving out the same defeatist line here in your comments for YEARS now. If you can keep on complaining that activism is too hard, then you could just put on your big boy pants and put all that emotional energy into actual, you know, activism.

    Spreading the word is important. It’s not just complaining. It’s called building new media that get the information out that needs to get out so that people can hear it. It’s about countering every mainstream news article about Britney Spears shaving her head with an article about the newest revelations of crimes by George W. Bush.

    When articles about the crimes of George W. Bush finally outnumber the stories about silly celebrities, Congress WILL sit up and notice. So, we plug away at it, day after day, year after year.

    And you know what Tom? I know you know this, already. Know how I know? You come back here to Irregular Times, year after year.

    If you really didn’t care, and really were resigned to just watch TV, you wouldn’t keep coming back.

    You know something else, Tom? You’re not the only one.

    Now buck up.

  4. Tom says:

    Arrr . . . ya got me there laddie.

    This is so frustrating.

    i do talk to some of my college students about what’s going on (it’s hard to be professional and stick to the subject when the country is going down the drain more every day) and they’re really upset about their lack of a future right now. We agree that the only realistic option is to hope that our vote actually counts for something and that it produces a decidedly different path for the country.

    Once again though, J., i’m not being defeatest, i’m just being cynical, sarcastic, and frustrated when i vent. Of course i’m not giving up, but i can see how people just run out of steam after while. And getting used to it is SCARY, cause then it just gets worse – they’ll pull anything on us if we can’t do anything but complain. C’mon, you know what i mean.

    Have you seen that John Adams special on HBO yet? i don’t have that on my “package” (that i rarely use), so i’m just going by the review on NPR (clips of dialogue with narration by David Bianculli i think). It sounded interesting – more so than say The Sopranos, at least historically. It was really INSPIRING too: these fledgling upstart colonists actually dared to rise up to the oppression and change things and they were willing to fight and die for it. The problem is, we’d be fighting our own country now! Can you imagine another civil war fought between conservatives and liberals? Neither can i.

    But it’s really great to see all the activism going on (that the media doesn’t cover) thanks to your coverage (i didn’t know where to look, but i got it now). This is what i’ve been waiting for – i’d even participate if it was like the old days and we’d fill the streets with candles and bodies, smiling and touching in solidarity – they couldn’t arrest us, we were way too big and we weren’t doing anything to damage property (giving them cause to start beating us). At first, that’s the way it was. Then Nixon decided to start cracking down and some kids got shot by the National Guard. Didn’t take kindly to that. So the marches and protests grew exponentially, it seemed, after that, and they started gettin’ violent too. We just weren’t gonna take it and there were way more of us (and to be fair some of the police started seeing it differently after while too).
    Back then, the media covered all this. The word was out and the next thing you know, so was Nixon.

    So much has changed since then.

    i hope they start getting involved.

  5. Iroquois says:

    Doesn’t Tom sound kind of wistful when he gets to the part about bodies and touching?

    The guitars in the park days are over. Everybody is snarky now.

  6. J. Clifford says:

    For those of us under 50, this isn’t about recreating the 1960s. It’s about getting things done today.

    No, I haven’t seen anything on HBO yet this year. I don’t get cable. I cut it out about two years ago, after I noticed I wasn’t watching anything good anyway.

    You’ll be surprised how much more becomes possible once you cancel your cable television subscription.

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