Friday, January 11, 2013

"Scandal" Looks at Torture & the Constitution (SPOILER ALERT)

A few weeks ago we took at look at the new hit show on ABC "Scandal" (starring Kerry Washington as Olivia Pope) because it addressed Hollywood's favorite Constitutional Amendment of all time: the 25th Amendment.  This is the Amendment that, in theory, allows the Vice President to take over as President if he or she collects enough signatures from the heads of the Executive Branches [See our old post to see the discussion on that issue].  Last night's show took on a different and more realistic Constitutional issue which our country still struggles with: torture.  This would be a good time for a spoiler alert so here it goes in nice big font so that you can't miss it:


Now that we've gotten that out of the way, let's get on with our discussion about torture.  We've blogged previously about the issue of whether or not our government should engage in the act of torturing criminal/terrorist suspects.  [See posts HERE and HERE].   Each time we've had this debate, people generally divide themselves into 1 of 2 camps:  those who think we should follow our own laws at all times and those who feel we don't have to when it comes to terrorists.  But who is right?

Huck played by Guillermo Diaz
In last night's episode, one of Olivia Pope's teammates, a former CIA operative named "Huck" (played by Guillermo Diaz), is set up as the fall guy for the attempted assassination of President Grant.  The federal authorities quickly detain him under the Patriot Act and, among other things, they proceed to waterboard him for information.  Oh and, by the way, Huck is a U.S. citizen.  This doesn't seem to matter much as the CIA agents administer beating after beating.   During one of Huck's torture scenes, there is an exchange which takes place nearby between Assistant U.S. Attorney David Rosen and an agent with the CIA.  
Assistant U.S. Attorney David Rosen played by Joshua Malina
David: He hasn't answered any of our questions yet.
CIA Agent:  He will.  They always do. Eventually they always do.
David: I'm just wondering really doesn't look like he can take much more of the waterboarding...the "interrogating," and I'm wondering if we maybe wanna do a little less "interrogating" and start thinking about his civil rights.  I'm a US Attorney, gentlemen. I represent the United States of America. The United States of America is in this room with you. So you need to watch how you treat the prisoner on American soil.
CIA Agent:  I represent the CIA, the Department of Homeland Security, the Patriot Act and all the men and women who ever fought and died for your right to stand in this room with your glasses and your briefcase and spout your crap.  We are not on American soil.  This is not America.  This is the Pentagon and that is an enemy combatant.  Son, I represent the United States, do you understand?  The United States of America is in the room with you.  You're a guest here.  Shut your mouth!        
David: ...
Eventually, the Acting President authorizes Huck's release and David has a brief exchange where he triumphantly barges in to end the interrogation and tells the CIA Agent that he is "back on American soil, now."    Nevertheless, the above exchange raises some interesting questions about our rule of law and how we conduct ourselves towards a perceived threat.
What stood out to me the most about the CIA Agent's speech is how it relies upon the facts not being what they are.  He tells David that this is not American soil when clearly the Pentagon is on American soil.  And even if it wasn't on American soil, his argument still would not work because the Supreme Court has ruled several times that the Constitution applies to all federal and state agents no matter where in the world they may physically be located (see Boumediene v. Bush, 553 U.S. 723 (2008) (holding that the Constitution still applies to terrorist suspects in Guantanamo Bay, Cuba).      

The Pro-torture camp usually cites to the "24 scenario" to make the case that we need to be able to torture terrorist suspects.  The 24 scenario is based off of the old TV show 24 where Jack Bauer has 24 hours to figure out where the next imminent threat is going to strike against America and do anything he can in order to stop it.  Under such exigent circumstances, the pro-torture crowd says that it's ok to "suspend" the Constitution in order to stop an attack from happening.  And to their credit, the Supreme Court has ruled that there is a "public safety exception" that allows authorities to continue questioning suspects during an emergency situation without stopping to give the suspect his or her Miranda rights [we have blogged about that HERE].  But understand that this exception is very limited in 3 important ways:  (1) the authorities must have reason to believe at the time that the suspect is taken into custody that there is an imminent threat to the public safety; (2) the questions asked by the authorities have to be related to that imminent threat; and (3) once the imminent threat is over, the suspect must be read their Miranda rights. 

Notice that this public safety exception is only a suspension of Miranda rights (the right to remain silent, have an attorney, etc.).  The exception does not say anything about torture being cool at any time.  The exception only allows authorities to ask questions before reading a suspect their rights when an imminent threat to public safety is concerned.  And the threat has to be (A) real and (B) imminent, not just some gut feeling that you made up because you want to torture somebody for 10 years in Gitmo.  In other words, it's OK to temporarily suspend somebody's Miranda rights in order to make sure that they don't know about any more information about imminent threats to America.  What is not OK is to permanently suspend all Constitutional rights indefinitely (including the right to not be tortured) until the "war on terror" is over.  A war waged against an idea has no expiration date.

At the end of the day, America has to decide what type of country we want to be.  Are we a nation of laws or are we a nation of unchecked emotions?  Despite the merits on each side of the torture debate, the law is clear: torture is not permitted under the 8th Amendment of the U.S. Constitution.  The 8th Amendment forbids the government from engaging in "cruel and unusual punishment" to people who have been arrested and/or detained, whether they've been read their Miranda rights or not.   Either we follow this law or we don't.  And if the answer is that we don't have to follow our own laws then why bother to have them in the first place?    
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