The testimony of centuries, in governments of varying kinds over populations of different races and beliefs, stood as proof that physical and mental torture and coercion had brought about the tragically unjust sacrifices of some who were the noblest and most useful of their generations. The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning, and other ingenious forms of entrapment of the helpless or unpopular had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hangman's noose.
- Chambers v. Florida (1940)
Near the end of the Declaration of Independence, there is the actual declaration -- the united colonies are now free and independent states with all the various powers (such as to form alliances with other nations ... cf. Art. I. sec. 10 as to let's say New York by itself not having such a power) which such states "may of right do."
My understanding of this phrase is that independent states do not have the rightful power (as compared to the might) to do everything. The Declaration in fact connects this early on to God. The "Laws of Nature and Nature's God" entitled them to declare independence, though said nature and nature's God also gave all men certain inalienable rights, which "just" governments may not violate.
"Positive" law (like constitutions and treaties [Part. III in particular]) in some rough fashion give life to these principles. The horrors of the 20th Century, which might not be as close to our psyches as 2001 but is still pretty important,* underline the importance of respect for the limits of national might. Underline being a nation of laws, not men (collectively speaking).
It needs to be underlined that there are always those who deem this cheap generalities to be used to satisfy our consciences, but to avoided in the heat of day, preferably out of our's view so we need not have to deal with it. Thus, Congress isn't allowed to see official opinions on the matter, videotapes are destroyed, and so forth. In this context, we have to question the relevancy of this Dahlia Lithwick's point:
What used to be an unambiguous legal test for torture—"conduct that shocks the conscience"—is hardly a useful bench mark anymore. How can anything shock the conscience after the vice president, in a parody of himself, crowed this week that "it's a good thing" top al-Qaida leaders underwent torture in 2002 and 2003—"a good thing we had them in custody" and "a good thing we found out what they knew." Even our conscience is a moving target. Water-boarding has gone from torture to a Martha Stewart slogan overnight.
But, it is not like there was no other time of stress where our conscience took a holiday. One case that "shocked" the conscience was forced stomach pumping to expel drugs. Many still would not find that too shocking. Many think we shouldn't really have a First Amendment, speech too free, religion too separate from government. Anyway, what is truly unambiguous? Some things, like racism and sexism, seem blatantly wrong. Torture does too. But, they continue, in part because enough people convince themselves of ambiguity. The problem was always there to face.
[After writing a form of this post, I learnt about Justice Scalia's comments on "so-called torture." Clearly, to cite one of the cases referenced, he does not quite agree that "the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind." As to his reference to the Eighth Amendment, duh. Torturing the not convicted is worse and raises statutory (let's put treaties here too) and constitutional issues all the same. Didn't he learn from the Newdow/Pledge case not to stick his foot in his mouth regarding pending issues?]
Our acceptance of waterboarding, a national surveillance state, etc. does suggest the possibility of changing standards can be both good (a credible run by a candidate of mixed racial heritage) and bad. The attempts to finalize a law that would set in stone broad powers to search our emails and so forth calls to mind a time when at least a third of the Supreme Court was wary of allowing many kinds of bugging with warrants. [See the dissent here.]
After all, the Fourth Amendment speaks of "particularly" targeting warrants, while such wiretaps were akin to the "general warrants" the colonialists were so concerned about, picking up everything, not just specific things necessary to use in trial etc. Now, we have to spend time explaining how governments do not have the rightful power to partially drown people to interrogate them. Or, how "faithfully" executing the laws (sort of the point of an "executive" to my understanding) means actually following the laws Congress passes. And, when you do break the law, you will get immunity.
[Sen. Obama voted 'nay,' Clinton did not show up. Not that he was anywhere perfect in that regard in the past, but it is something. See here (comments) about why I think Barack is not the same as Clinton, and part of why I favor him over her.]
We can end with the remarkable sight of Huckabee doing more to challenge a caucus than John Kerry did to challenge the results in Ohio in 2004. Similarly, though long ago the Supremes held (in the white primary cases, e.g. ... quite relevant during Black History Month) aucuses are not 'private,' but of public concern, Talking Points Memo has multiple posts underlining how little the Republican establishment cares. After all, as McCain says, he surely won (after they stopped a count with 87% reporting, the difference between the two within the margin of error), so what's the problem?
Mr. Maverick. Anyway, whoever wins, reminding them what they and the government cannot do will be a never-ending task, most probably.
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* One of many books that underline the point was written by Samantha Power, now an advisor to Sen. Obama: A Problem from Hell: America and the Age of Genocide, which won the Pulitzer Prize for General Non-Fiction in 2003.
Another one that comes to mind is The Rape of Nanking by Iris Chang in part because when the Japanese waterboarded, it was deemed criminal. However, given the ends justify the means sentiment prevalent in some quarters, this is irrelevant to some, since obviously their cause was evil.