Bruce In Bangkok wrote:

Well, for the sake of argument, let's assume you are correct (though
doubtful) that the punishment must be *both* cruel and unusual to be
covered by the 8th amendment. "Torture" is illegal in the US, and in
international law. By definition, "torture" is cruel, and since it is
outlawed worldwide in international law and treaty, it cannot, by
definition be considered "usual", and therefore violates the 8th as you
interpret it. Not to mention violating due process (14th amendment) in
that the "torture" is applied to individuals who have not been tried for
a crime.

You can make an argument about whether any given action *constitutes*
torture, but you cannot make a rational argument that there are
"acceptable forms of torture" within any legal framework.

Keith


As the term, which was first used in England in 1689, was originally
used as a ban for punishments that were considered cruel or unusual.
Examples - flogging around the fleet which actually constituted being
flogged to death, being torn apart by either the rack or wheel,
hanging, drawing and quartering, and so on.

I believe that the first U.S. definition of the term was
In Wilkerson v. Utah, 99 U.S. 130 (1878), when the Supreme Court
commented that drawing and quartering, public dissecting, burning
alive, or disemboweling would constitute cruel and unusual punishment
regardless of the crime.

The reference to torture, in U.S. law was, I believe, added at some
later date although I do not have a specific date.


There's no denying that the interpretation of "cruel and unusual" is
open to disagreement, as is the range of actions that constitute
"torture". The point, however, is that "torture", through national and
international law, and convention, is illegal. The statement that "some
forms of *torture* are acceptable" obviates any discussion of what
actions constitutes "torture". Any action that qualifies, under
currently accepted definitions, as "torture" is illegal. To be
"acceptable", an action must be defended as being "not-torture", not
'well, it's torture, but it's OK torture'.

And I wholeheartedly agree with your earlier premise re. the hypocrisy
much of the non-US world now see in our pronouncements about the human
rights abuses of other countries. Hopefully that will change somewhat
in the next several years.

Keith