chapter  4
19 Pages

Torture and the demise of the justiciable standard of enlightened government: A US perspective


Under the 2006 Military Commissions Act the prosecution will be permitted to use in evidence coerced statements for trials of Guantanamo detainees – a use condemned by international legal norms, which absolutely prohibit torture in any situation.1 With its 1991 ratification of the UN Convention Against Torture the US declared itself bound by the Torture Convention’s prohibitions only to the extent of the prohibitions offered by the US Constitution. The US Supreme Court has not provided a determination of the constitutionality of the use of torture on a terrorist suspect. However, Supreme Court Associate Justice Scalia, in a recent BBC interview, observed the inapplicability of the Eighth Amendment’s prohibition on cruel and unusual punishment in respect of ‘socalled torture’ used to prevent imminent terrorist threats, since in his opinion the purview of constitutional language is limited to those being pun - ished for a crime.2 Its terms, and its safeguards, thus cannot apply in cases of pre-emption – an argument surely more suited to Alice in Wonderland than to judicial decision-making.