Torture and the Fifth Amendment

• DOI: 10.1177/0734016808315585
• Author: Geoffrey R. Skoll
• Published date: 01 March 2008
• Date: 01 March 2008
• Subject Matter: Articles

Torture and the Fifth Amendment

Torture, the Global War on Terror,

and Constitutional Values

Geoffrey R. Skoll

Buffalo State College

Over the past several years, military and intelligence personnel of the United States have

tortured captives, gained information from others’ torture of captives, or sent captives to be

tortured. Even aside from statutory law and international treaties and conventions to which the

United States is party, prohibition of torture by agents of the state is implicit in the very fabric

of U.S. political society as embodied in the Constitution, especially the Fifth Amendment. The

rights guaranteed under the Fifth Amendment derive from English common law, with its long

and venerable history. Furthermore, common-law rights and protections permeate all of

Anglo-American law. The Fifth Amendment plays a central role in these legal safeguards.

Historical and analytic accounts of both the Fifth Amendment and torture may shed light on

recent revelations of the use of torture.

Keywords: torture; constitutional; Fifth Amendment; terrorism; rights

The rack . . . [is] an engine of state, not of law.

William Blackstone. 1765-1769,

Commentaries on the Laws of England, p. 326

Torture is something only humans do. It is a purposeful activity, although the purposes

vary. Developed criminal justice systems prohibit torture and punish torturers. Systems of

law regulate torture, and many other crimes committed by individuals, reasonably, effec-

tively and efficiently. Private torture falls within the category of aggravated assault and, if

death occurs, homicide. Nevertheless, when the torturer acts on behalf of the state, com-

plexities arise.

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Criminal Justice Review

Volume 33 Number 1

March 2008 29-47

© 2008 Georgia State University

Research Foundation, Inc.

10.1177/0734016808315585

http://cjr.sagepub.com

hosted at

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Author’s Note: I thank several anonymous reviewers whose suggestions I have shamelessly incorporated. The

discussions of Chavez v. Marinez and United States v. Balsys especially are in response to their critiques. One

reviewer helped clarify my point about how the Miranda decision affected police interrogations, and another

helped make my discussion of emergency powers stronger by reminding me of the ticking time bomb hypoth-

esis and suggesting several important references. Errors and omissions are, of course, completely mine. Please

address correspondence to Geoffrey R. Skoll, Criminal Justice Department, Buffalo State College 1300

Elmwood Avenue, Buffalo, NY 14222; skollgr@buffalostate.edu.

The English Background

The U.S. legal system was born before the United States itself, as its system of law and

jurisprudence derives from English common law. A principle departure from the English

system is the American invention of a written constitution to establish the United States.

The Constitution is the foundation of the state and of law. Even so, it owes much to English

common law, and one part of the Constitution in particular is greatly indebted to its English

forebears—the Bill of Rights, the first 10 amendments to the Constitution. The Bill of

Rights is rightly associated with individual liberty and has attained world renown for its

enunciation of that ideal. Among its protections are safeguards against torture by the state.

One part is especially pertinent—the Fifth Amendment. Recently, those safeguards seem to

have faltered. The relationship between torture and the Fifth Amendment and democratic

values is the subject of this essay.

On December 8, 2005, the Law Lords Appellate Committee of Great Britain, the high-

est legal tribunal of the United Kingdom, granted an appeal in an immigration case (A (FC)

and Others (FC) v. Secretary of State for the Home Department, 2005). A group of aliens

had been jailed as suspected terrorists, pending deportation. At issue was the government’s

admission that it had used evidence gained through torture. The appellants themselves had

not been tortured. Witnesses against them had given statements when tortured by agents of

foreign powers. The Law Lords decided that evidence gained through torture could not be

used against the appellants and so granted their appeal. In their written opinions, the Lords

summarized Anglo-American legal traditions regarding torture and coerced statements. The

decision was unanimous. All Lords wrote concurring opinions, and Lord Bingham of

Cornhill wrote the main opinion of the court.

Citing various historical and contemporary commentaries and authorities,1Lord

Bingham began his discussion as follows.

11. It is, I think, clear that from its very earliest days the common law of England set its face firmly

against the use of torture. Its rejection of this practice was indeed hailed as a distinguishing

feature of the common law, the subject of proud claims by English jurists [see footnote 1]. . . .

That reliance was placed on sources of doubtful validity, such as chapter 39 of the Magna

Carta 1215 [citations omitted] . . . did not weaken the strength of received opinion. The

English rejection of torture was also the subject of admiring comment by foreign authorities.[2]

This rejection was contrasted with the practice prevalent in the continental states of Europe

who, seeking to discharge the strict standards of proof required by the Roman-canon models

they had adopted, came routinely to rely on confessions procured by the infliction of torture

[citations omitted]. In rejecting the use of torture, whether applied to potential defendants or

potential witnesses, the common law was moved by the cruelty of the practice as applied to those

not convicted of crime, by the inherent unreliability of confessions or evidence so procured

and by the belief that it degraded all those who lent themselves to the practice.

Lord Bingham went on to note that during the 16th and early 17th centuries the Crown

and Privy Council used torture mainly, although not exclusively, in relation to alleged

offenses against the state. The Crown used torture by issuing warrants backed by royal pre-

rogative. Its association with royal power led to its abolition before the English Civil War

30 Criminal Justice Review