Modern Australian Republicanism is predicated on the supremacy of the individual, and the government deriving their legitimacy to make laws from the consent of the people. The basis for this consent is void when individual rights are violated by the government. Rights exist for all individuals under the jurisdiction of the government's ability to make and execute laws - a right is not unique to a citizen, nor an individual from a majority - they are universal to all. Torture is a contravention of an individual's rights, and an individual's consent to the civil legal system; consequently it represents government tyranny. Torture is a vehicle of state oppression and intimidation. It has no place in an Australian Republic.

Torture

Torture is the affliction of severe physical or psychological pain for the purpose of intimidation, coercion or punishment. The UN Convention Against Torture describes torture as;

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The conundrum with government in a liberal democracy is relinquishing the perfect freedom of the individual in a trade off for an ordered society. If all individuals are perfectly free, not only in their person and possessions, but also in their ability to inflict their arbitrary will on others, then it can lead to a chaotic society. The consistency in a society comes through the consent to the "rule of law".

Individuals in a society, presumably consent to government in order to have their person and possessions free from the arbitrary will of others. To achieve this, government is granted a monopoly to create law and enforce it. Vigilante justice is frowned upon as it is the arbitrary creation, and enforcement of law. To ensure the consistency of the law, the enforcement and judgement are moved to separate arms of government, the police and judicial.

This compact between government and people is done through an individual wilfully giving up their ability to impose their arbitrary will on another individual. While government is given a monopoly on coercion through legislation, it does not gain a monopoly on arbitrary legislation and enforcement. The government cannot impose their will arbitrarily, in the same manner that an individual cannot. If the government does, it has fallen into tyranny. With this step from the rule of law, the compact is broken and the individuals, whose consent gives the government legitimacy, do not need to follow the laws of the government any longer. With tyranny, the government is illegitimate.

Inviolable Rights

Modern Australian Republicanism contains in its doctrine the principle of inviolable rights. Inviolable rights, codified into a rule of law body of legislation, protect the individual from the tyranny of the state, and the arbitrary will of government. At its very core it is an individual being secure in their person and property. This includes freedom from torture by other individuals and the state.

Any government which practices torture is practising tyranny. Australian Republicanism is about removing the capability of tyranny from government - that includes torture of anyone under the jurisdiction of the state.

cam

Here's a handy rule of thumb: If you are beating detainees to death, there's a fair chance that what you're doing counts as torture.

.. Julian Sanchez sifts through some detail on the All American Gulag.

Cesare Beccaria was an Italian economist who published, Essay on Crimes and Punishment in 1764. It contains an excellent argument against torture.

From the essay:

A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.

A man cannot be called guilty before sentence has been passed on him by a judge, nor can society deprive him of its protection till it has been decided that he has broken the condition on which it was granted. What, then, is that right but one of mere might by which a judge is empowered to inflict a punishment on a citizen whilst his guilt or innocence are still undetermined?

The following dilemma is no new one; either the crime is certain or uncertain; if certain, no other punishment is suitable for it than that affixed to it by law; and torture is useless. If it is uncertain, it is wrong to torture an innocent person, such as the law adjudges him to be, whose crimes are not yet proved.

I have previously argued that torture is incompatible with republicanism . Beccaria's arguments can be added to that list of why.

x-posted in modified form to troppo

I have written in the past that torture is incompatible with republicanism ; and it has been known that torture produces incorrect results. Case in point, the capture Abu Musab al-Zarqawi. The same captives were under detainment that uses torture, and then replaced by a new intelligence unit who used standard and non-coercive techniques. The latter produced the intelligence which led to Zarqawi's death .

So torture is morally repugnant, politically impossible under liberal democracy and republican governence, and it does not produce results. It fails morally, liberally and empirically. There is no possible positive argument for it other than the base satiation of personal sadism.

Torture is nothing more than tyranny and arbitrary violence from the executive.

... so does the country.

From the article:

"We're not the mean waterboarding company that people think we are," said George Brunt, general counsel for the firm, which sells a combination of online and personalized instruction - packaged as "coaching" and running $3,000 to $15,000 - to customers who are solicited by telephone.

and:

"I don't know if this would even be an issue if it weren't for Guantanamo Bay," Brunt said.

"How many times did the CIA even do waterboarding? Three times?" added Dave Ellis, the company president.

"But look at the damage it did to America's reputation," Brunt pointed out. "And it's going to hurt our image."

Sounds like the horse has bolted.

I just finished Jane Mayer's The Dark Side. The sub title of the book is polemic, but basically it is a recent journalistic history of the internal legal battles within the White House and Pentagon over what was legally permissible during interrogation. The issue for the United States was that it had always abided by the Geneva Conventions, and the military had procedures and mechanisms to divide civilians out from soldiers, saboteurs and terrorists. This was blown away by Cheney's and Bush's 'get tough on terror' policies that enabled torture.

The legal mechanism for destroying all executive legal precedent for the Geneva Conventions was David Addingtons doctrinaire and political approach to the formerly independent OLC. The Office of Legal Counsel. It is a small legal department in the Executive which acts like a mini-supreme court in the Executive an writes memos and guidance on what is constitutionally and legally permissible for the Executive to do.

Like all the White House and Executive under the Bush Administration this independent office was politicized. John Yoo being the main perpetrator of giving Addington and Cheney exactly what they wanted in terms of legal advice. To make it worse, these legal memos were then made secret, so that the CIA and military had no real legal guidance over what they could do. Instead they were given legal advice such as 'take the gloves off' from the likes of Rumsfield, Tenet and Cheney.

To the FBI's credit under Mueller, they refused to torture. But the CIA appeared to be willing to do it and take it to abnormal lengths. Renditions were popular - they did exist during the Clinton Administration too - and suspects, real and imaginary, were sent to hellholes in Syria, Poland, Afghanistan and tortured.

The policy did not change despite the Supreme Court ruling against the legal policies of the Bush Administration. More independent lawyers such as Comey and Goldsmith fought against the secret and legal memos, but in each case where Cheney and Addington came up against people acting in conscience they replaced the person - usually when they resigned - with someone politically pliable. Gonzalez and Bradbury.

The Bush Administration proved it was not particularly good at governance in multiple areas, the war on terror was no exception. The Bush Administration at its highest levels, including the President, Vice President, Secretary of Defense, the head of the CIA, the Attorney General, etc all embraced the policies that the United States will torture suspects for information and will not have habeas corpus available to them. The latter a simple political right from the 13thC, the former supposedly banned from civil and moral society.

It is sad the United States willingly and openly stooped so low. Worse, it did it all for nothing. Torture did not work, there was no good information from it, and it made many people who should have been publicly prosecuted in a court of law for their crimes against humanity impossible to take before a court because they had been tortured. It was a catastrophic failure of judgment, morality and governance by the Bush Administration.