Rapporteur on Torture to Common Law: Drop Dead

The UN Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Nils Melzer, has sent a letter to the US government asserting that the imprisonment of Chelsea Manning for refusing to testify before a grand jury is “torture or other cruel, inhuman or degrading treatment or punishment.” When I first learned of this, I thought maybe the Rapporteur’s view would be tied specifically to Manning’s case. Maybe something particular about Manning’s mental health, previous imprisonment, etc. would account for his view. But it seems that the Rapporteur is making a much more general point:

It is my understanding that the practice of coercive deprivation of liberty for civil contempt under the Recalcitrant Witness Statute, 28 U.S.C. § 1826, involves the intentional infliction of progressively severe mental and emotional suffering for the purposes of coercion and intimidation at the order of judicial authorities. Indeed, victims of prolonged coercive confinement have demonstrated post-traumatic symptoms and other severe and persistent mental and physical health consequences.

Based on these elements, I conclude that such deprivation of liberty does not constitute a circumscribed sanction for a specific offense, but an open-ended, progressively severe measure of coercion fulfilling all the constitutive elements of torture or other cruel, inhuman or degrading treatment or punishment. In my view, such measures do not fall under the “lawful sanctions” exception of Article 1 [of the Convention Against Torture] but are contrary to the absolute non-derogable and peremptory prohibition of torture and, therefore, should be discontinued and abolished without delay.

In other words, imprisonment as a method of coercing obedience to court orders is torture and must be prohibited. Torture.

What is very surprising to me about the Rapporteur’s letter is the lack of any appreciation of the common law conception of the nature of civil contempt. It is, as our courts say, not a punishment at all, but a measure taken to compel obedience to court orders, and the contemnor—the person in contempt—or the recalcitrant witness holds the key to the jail cell and can leave at any time, simply by agreeing to do what the law requires. Manning, for example, can leave jail anytime, simply by agreeing to do what everyone has the obligation to do and to testify before a grand jury when required. And even leaving aside that point, there is a lot to say about the legal history and the dueling conceptions of the role of judges and courts that can explain why the common law world has much stronger mechanisms for enforcing obedience to judicial orders than, apparently, exist in the civil law world. I recommend Michael Chesterman, Contempt: In the Common Law, But Not the Civil Law, 46 Int’l & Compl L. Q. 521 (1997), for an interesting and enlightening discussion (though his conclusions, while nuanced, seem too heavily weighted in favor of the civilian approach).

I have to think that at the time of the Convention Against Torture, which was not even twenty years ago, if you had said to the common law countries considering signing the treaty, “by the way, you no longer will be able to imprison people who disobey court orders in order to coerce them to obey,” you would have gotten a very unfavorable response. And the reason wouldn’t be that it’s enjoyable or gratifying to imprison people. To take the case of recalcitrant witnesses, there are deep policies at issue:

John Henry Wigmore
John Henry Wigmore.

For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.

* * *

In general, then, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege. This common law rule is not questioned today. No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.

8 Wigmore on Evidence §§ 2192, 2286 (McNaughton Rev.).

To my mind letters like the Rapporteur’s letter in the Manning case cheapen and trivialize very real concerns about torture in two ways. First, and most obviously, they use the heavy-duty concept of torture to try to proscribe state action that, in my view anyway, almost no one would actually think of as torture. This calls the whole enterprise of international efforts against torture into disrepute. Second, and more to the point here, they presuppose the rightness of one legal conception without taking the other conception seriously. No one would doubt that a sentence of imprisonment for a crime defined by a legislator handed down after trial is not torture. But commitment to jail is said to be torture because it is an “open-ended” sentence not imposed for a “specific offense,” even though the length of the imprisonment is entirely in the recalcitrant witness’s control. I have to wonder what the Rapporteur would say about imprisonment for common-law crimes.

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