Amicus Curiae Brief — United States, Petitioner v. Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah, et al.

Supreme Court briefAug 20, 2021

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No. 20-827

In the Supreme Court of the United States

__________________

UNITED STATES OF AMERICA, Petitioner,

ZAYN AL-ABIDIN MUHAMMAD HUSAYN,

A.K.A. ABU ZUBAYDAH, ET AL., Respondents.

__________________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

__________________

Brief for Amici Curiae National Religious Campaign

Against Torture; Church of the Brethren, Office of

Peacebuilding and Policy; General Synod of the

United Church of Christ; National Advocacy Center

of the Sisters of the Good Shepherd; Congregation

of Our Lady of Charity of the Good Shepherd, U.S.

Provinces; Alliance of Baptists; Friends Committee

on National Legislation; Maryknoll Office for Global

Concerns; and Reconstructionist Rabbinical

Association in Support of Respondents

and Affirmance

__________________

ANNA M. GREVE

BRIAN A. MORRIS

TAFT STETTINIUS &

HOLLISTER LLP

425 Walnut Street, Suite 1800

Cincinnati, Ohio 45202

VIVEK R. HADLEY

TAFT STETTINIUS &

HOLLISTER LLP

One Indiana Square, Suite 3500

Indianapolis, Indiana 46204

MICHAEL K. ROBERTSON

JONATHAN N. OLIVITO

DAVID J. BUTLER

Counsel of Record

TAFT STETTINIUS &

HOLLISTER LLP

65 E. State Street, Suite 1000

Columbus, Ohio 43206

(614) 334-6167

dbutler@taftlaw.com

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

AMERICA IS COMPRISED OF A DIVERSE

FABRIC OF RELIGIONS . . . . . . . . . . . . . . . . 8

II.

OUR RELIGIOUS TRADITIONS SHARE A

COMMON BELIEF IN HUMAN DIGNITY

AND AN OBJECTION TO TORTURE. . . . . 13

A. Religions share the core belief that

human life is sacred . . . . . . . . . . . . . . . . . 14

B. Torture conflicts with the human dignity

rooted in all religions . . . . . . . . . . . . . . . . 16

C. Churches of all faiths call for

governments to end torture . . . . . . . . . . . 18

III.

OUR RELIGIOUS TRADITIONS SHARE A

COMMON BELIEF IN REDEMPTION

THROUGH CONFESSION. . . . . . . . . . . . . . 22

IV.

THE RELIGIOUS OBJECTIONS TO

TORTURE AND BELIEF IN CONFESSION

ARE REFLECTED IN OUR SECULAR

LEGAL TRADITIONS. . . . . . . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

TABLE OF AUTHORITIES

CASES

Carmona v. Ward,

576 F.2d 405 (2d Cir. 1978) . . . . . . . . . . . . . . . . 28

Estelle v. Gamble,

429 U.S. 97 (1976). . . . . . . . . . . . . . . . . . . . . . . . 28

Frank v. Maryland,

359 U.S. 360 (1959). . . . . . . . . . . . . . . . . . . . . . . 31

Furman v. Georgia,

408 U.S. 238 (1972). . . . . . . . . . . . . . . . . 29, 30, 34

In re Kemmler,

136 U.S. 436 (1890). . . . . . . . . . . . . . . . . . . . . . . 28

Marcus v. Search Warrant,

367 U.S. 717 (1961). . . . . . . . . . . . . . . . . . . . . . . 31

Maryland v. Shatzer,

559 U.S. 98 (2010). . . . . . . . . . . . . . . . . . . . . . . . 32

McNeil v. Wisconsin,

501 U.S. 171 (1991). . . . . . . . . . . . . . . . . . . . . . . 32

Obergefell v. Hodges,

576 U.S. 644 (2015). . . . . . . . . . . . . . . . . . . . 27, 34

Olmstead v. United States,

277 U.S. 438 (1928). . . . . . . . . . . . . . . . . . . . 30, 31

Powell v. Allstate Ins. Co.,

655 So. 2d 354 (Fla. 1995) . . . . . . . . . . . . . . . . . 27

Schmerber v. California,

384 U.S. 757 (1966). . . . . . . . . . . . . . . . . . . . . . . 31

iii

Stack v. Boyle,

342 U.S. 1 (1951). . . . . . . . . . . . . . . . . . . . . . . . . 30

Stanford v. Texas,

379 U.S. 476 (1965). . . . . . . . . . . . . . . . . . . . . . . 31

State v. Johnson,

294 A.2d 245 (N.J. 1972) . . . . . . . . . . . . . . . . . . 30

Trop v. Dulles,

356 U.S. 86 (1958). . . . . . . . . . . . . . . . . . . . . 28, 29

Ullmann v. United States,

350 U.S. 422 (1956). . . . . . . . . . . . . . . . . . . . 30, 31

United States v. Ferrara,

771 F. Supp. 1266 (D. Mass. 1991). . . . . . . . . . . 27

Wilkerson v. Utah,

99 U.S. 130 (1878). . . . . . . . . . . . . . . . . . . . . . . . 28

CONSTITUTION

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . 31

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . 30, 31, 32

U.S. Const. amend. VIII. . . . . . . . . . . . . . . . 28, 29, 30

TREATIES

The Geneva Convention, Art. 3(1)(a)

(Aug. 12, 1949) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

SENTENCING GUIDELINES

U.S.S.G. § 3E1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

OTHER AUTHORITIES

2 Institutes of the Christian Religion 91, tr. John

Allen, 6th American ed. (Philadelphia 1936). . . 25

3 J. Elliot’s Debates (2d ed. 1876) . . . . . . . . . . . . . . 30

40 Hadiths on Social Justice, Omar Suleiman,

YAQUEEN INST. (2019)

(https://tinyurl.com/36625jz6) . . . . . . . . . . . . . . 17

Ahimsa: Its Theory & Practice in Gandhism, Ram

Ponnu, GHANDHIAN INSTS.

(https://tinyurl.com/7dp32hb). . . . . . . . . . . . 15, 21

Al-Adab Al-Mufrad 188, 768-769. . . . . . . . . . . . 16, 17

Am. Heritage Dictionary (New College Ed.

1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

America’s Changing Religious Identity, Daniel Cox

& Robert O. Jones, PUBLIC RELIGION RESEARCH

INSTITUTE (2017) . . . . . . . . . . . . . . . . . . . . . . 12, 13

America’s True History of Religious Tolerance,

Kenneth C. Davis, SMITHSONIAN MAGAZINE

(2010) (https://www.smithsonianmag.com/history

/americas-true-history-of-religious-tolerance61312684/) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

An Album of Rhode Island History, Patrick T.

Conley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

An Evangelical Declaration Against Torture, Nat’l

Assoc. Evangelicals (2007)

(https://www.nae.net/an-evangelical-declarationagainst-torture/) . . . . . . . . . . . . . . . . . . . . . . . . . 19

Thomas Aquinas, The Summa Theologica,

Supplement, q. VI, art. 1 (Fathers of the English

Dominican Province trans.)

(https://tinyurl.com/b2ucxk9f) . . . . . . . . . . . . . . 23

Asian Religions in America, Thomas A. Tweed &

Stephen Prothero (1999). . . . . . . . . . . . . . . . . . . 11

Mahmoud Ayoub, “Repentance in the Islamic

Tradition,” in Repentance: A Comparative

Perspective (ed. Amitai Etzioni and David E.

Carney 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

F. Crawford Burkitt, The Religion of the Manichees,

2 The Journal of Religion 263 (May 1922) . . . . . 24

Christian Church (Disciples of Christ), GA-1329,

Supporting a Treaty for the Prevention of Torture

(2007) (https://tinyurl.com/2wmh3bjr) . . . . . . . . 20

Rev. R. F. Clarke, The Practice of Confession in the

Catholic Church, 169 The North American

Review 829 (Dec. 1899). . . . . . . . . . . . . . . . . . . . 25

Conciliorum aecumenicorum decretal, ed. J Alberigo

(3d ed. Bologna, 1973). . . . . . . . . . . . . . . . . . . . . 23

Confessions, Mary Boyce, 1 A History of

Zoroastrianism ENCYCLOPAEDIA IRANICA ONLINE

(1975) (https://tinyurl.com/4uahc4y7 ) . . . . . . . . 23

John D’Arcy May, Human Dignity, Human Rights,

and Religious Pluralism: Christian and

Buddhist Perspectives, 26 Buddhist-Christian

Studies (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Dignitatis Humanae, Pope Paul VI, THE VATICAN

(Dec. 7, 1965) (https://tinyurl.com/5bvz7m3c) . . 14

Early Buddhist Monachism, Sukumar Dutt

(1924). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Five Cardinal Sins, Soka Gakkai, NICHIREN

BUDDHISM LIBRARY (https://www.nichirenlibrary

.org/en/dic/Content/F/35) . . . . . . . . . . . . . . . . . . 15

Following the Broad-Shouldered Jesus: The College

YMCA and the Culture of Muscular Christianity

in American Campus Life, David P. Setran,

AMERICAN EDN. HISTORY JOURNAL (2005) . . . . . 10

For the Health of the Nation, Nat’l Assoc.

Evangelicals (2018)

(https://tinyurl.com/p8zxk45m) . . . . . . . . . . 14, 19

Holy Baptism, The (Online) Book of Common

Prayer (https://tinyurl.com/2f5vtzhr). . . . . . . . . 19

Holy Bible

Genesis 1:26–27. . . . . . . . . . . . . . . . . . . . . . . . . . 14

Hebrews 13:3 . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 20

Isaiah 53:5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

John 3:16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Luke 6:35–36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Luke 23:34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Matthew 5:7–9. . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Matthew 5:14. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

vii

1 Peter 2:24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Psalm 37:11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. Quince Hopkins, Tempering Idealism with

Realism: Using Restorative Justice Processes to

Promote Acceptance of Responsibility in Cases of

Intimate Partner Violence, 35 Harv. J. L. &

Gender 311 (2012). . . . . . . . . . . . . . . . . . . . . 32, 33

Human Rights, Democracy & Freedom, Tenzin

Gyatso, His Holiness the 14th Dalai Lama of

Tibet (https://tinyurl.com/haan9yuv) . . . . . . . . . 21

Interfaith Grp. Speaks Out Against Torture, Chip

Somodevilla, ASSOC. PRESS (2008)

(https://tinyurl.com/383cw4eb) . . . . . . . . . . . . . . 16

Jain Websites, JAIN CTR. OF AM.

(https://www.nyjaincenter.org/Education

/Jain-Websites) . . . . . . . . . . . . . . . . . . . . . . . 21

David L. Johnston, A Muslim & Christian

Orientation to Human Rights: Human Dignity &

Solidarity, 24 Ind. Int’l & Comp. L. Rev. 899

(2014). . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16, 34

Wulf a Kaal & Timothy A. Lacine, The Effect of

Deferred & Non-Prosecution Agreements on

Corporate Governance: Evidence from 1993-2013,

70 Bus. La. 61 (2014) . . . . . . . . . . . . . . . . . . . . . 33

Yishai Kiel, Penitential Theology in East Late

Antiquity: Talmudic, Zorastrian, and East

Christian Reflections, 45 Journal for the Study

of Judaism in the Persian, Hellenistic, and

Roman Period 551 (2014) . . . . . . . . . . . . . . . . . . 26

viii

Measuring Religion in Pew Research Center’s

American Trends Panel, PEW RESEARCH CENTER

(2021) (https://www.pewforum.org/2021/01/14/

measuring-religion-in-pew-research-centersamerican-trends-panel/) . . . . . . . . . . . . . . . . . . . 13

Melton’s Encyclopedia of American Religions,

Eighth Edition, J. Gordan Melton (2009) . . . . . 10

Methodism and the Second Great Awakening,

Joseph A. Thacker (1975) . . . . . . . . . . . . . . . . . . . 9

Mission, Quaker Initiative to End Torture

(https://www.quit-torture-now.org/mission/) . . . 20

Alexander Murray, Confession before 1215, 3

Transactions of the Royal Historical Society

(1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Native American Religion in Early America,

Christine Leigh Heyrman, N ATIONAL

HUMANITIES CENTER (2008) (http://national

humanitie scenter.org/tserve/eighteen/ekeyinfo/

natrel.htm) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bilhah Nitzan, “Repentance in the Dead Sea

Scrolls,” in 2 The Dead Sea Scrolls after Fifty

Years: A Comprehensive Assessment (ed. Peter

W. Flint and James C. VanderKam 1998–99) . . 26

Penitential Prayer in Second Temple Judaism: The

Development of a Religious Institution, Rodney

A. Werline (1998) . . . . . . . . . . . . . . . . . . . . . . . . 25

Pope John Paul II, The Catechism of the Catholic

Church, Part 3, § 1, Ch. 1, Art. 8 (IV) (1992)

(https://www.vatican.va/archive/ENG0015/__P

6C.HTM). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Pope Says Torture is a Mortal Sin; Vatican Urges

Help for Drug Abusers, Carol Glatz, CRUX (2018)

(https://tinyurl.com/4h3r59rb) . . . . . . . . . . . . . . 18

QuickFacts, United States Census Bureau

(https://www.census.gov/quickfacts/fact/table/

US/PST045219) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Recognize the Dignity in Every Person, VATICAN

MEDIA (Aug. 12, 2020)

(https://tinyurl.com/enmuajx5). . . . . . . . . . . . . . 14

Religion and the Founding of the American

Republic: Religion in Eighteenth-Century

America, LIBRARY OF CONGRESS

(https://www.loc.gov/exhibits/religion/) . . . . . . . . 8

Religion in Nineteenth-Century America,

Dr. Graham Warder, DISABILITY HISTORY

MUSEUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Religious Events by Date, QUALITY DATA ON

RELIGION (https: //www.thearda.com/timeline/

browse_all_events_date.asp) . . . . . . . . . . . . . . . 11

Religious Events by Date, THE ASSOCIATION OF

R ELIGION D ATA A RCHIVES (https://www.

thearda.com /timeline/browse_all_events_date

.asp) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Religious Landscape Study, PEW RESEARCH CENTER

(2021) (https://www.pewforum.org/religiouslandscape-study/) . . . . . . . . . . . . . . . . . . . . . . 6, 11

Resolution No. 2009-C020, Condemn Torture and

Extraordinary Rendition, 76th Gen. Convention,

The Archives of the Episcopal Church

(https://tinyurl.com/sb6bpkmv) . . . . . . . . . . . . . 19

Sahin Muslim 2613 . . . . . . . . . . . . . . . . . . . . . . . . . 16

Sin: A History, Gary Anderson, (2009) . . . . . . . . . . 26

Scott Michael Solkoff, Judicial Use Immunity & the

Privilege Against Self-Incrimination in Court

Mandated Therapy Programs, 17 Nova L. Rev.

1441 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Some Aspects of Rabbinic Theology, Solomon

Schecter (1909) . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Southern Christian Leadership Conference,

NATIONAL PARKS SERVICE (https://www.nps.gov

/subjects /civil rights/sclc.htm) . . . . . . . . . . . . . . 12

The Abolition of the Slave Trade: Christian

Conscience and Political Action, John Coffey,

CAMBRIDGE PAPERS (2007) . . . . . . . . . . . . . . . . . 12

The Acharanga Sutra, Chapple 11 . . . . . . . . . . . . . 15

The Book of Discipline, Social Principles: The

Political Community, United Methodist Church

(2016) (https://tinyurl.com/388s6tas) . . . . . . . . . 20

The Encyclopedia of American Religious History,

Edward Queen (1996) . . . . . . . . . . . . . . . . . . . . . 10

The Ghost-Dance Religion and Wounded Knee,

James Mooney (2012) . . . . . . . . . . . . . . . . . . . . . 10

The Holy Qur-an: Text, Translation, and

Commentary, Abdullah Yusuf Ali (1938) . . . . . . 24

The Pluralism Project: Hinduism in America,

HARVARD UNIVERSITY

(https://pluralism.org/hinduism-in-america) . . . 11

The Quran

The Quran 2:30 . . . . . . . . . . . . . . . . . . . . . . . . . . 15

The Quran 2:191 . . . . . . . . . . . . . . . . . . . . . . . . . 16

The Quran 5:32 . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The Quran 6:151 . . . . . . . . . . . . . . . . . . . . . . 14, 16

The Quran 99:7–8 . . . . . . . . . . . . . . . . . . . . . . . . 24

The Truth about Mrs. Eddy, NEW YORK TIMES

(1906). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The Use of Torture or Lesser Forms of Coercion to

Obtain Information from Prisoners, Cent. Conf.

Am. Rabbis (2005)

(https://tinyurl.com/hxs3ufbh) . . . . . . . . . . . . . . 18

The Wit and Wisdom of the Christian Fathers of

Egypt: The Syrian Version of the Apophthegmata

Patrum by Anan Isho of Beth Abhe, Ernest A.

Wallis Budge (1934) . . . . . . . . . . . . . . . . . . . . . . 27

Torture is a Moral Issue: Study Guide 3, U.S. Conf.

of Catholic Bishops (2012)

(https://tinyurl.com/43yx7e5m) . . . . . . . . . . . . . 16

xii

Total Jewish Population in the United States,

JEWISH VIRTUAL LIBRARY

(https://www.jewishvirtuallibrary.org/jewishpopulation-in-the-united-states-nationally) . . . 11

United Nations Gen. Assembly, Convention Against

Torture & Other Cruel, Inhuman or Degrading

Treatment or Punishment, Art. 1 (1984) . . . . . . 18

United Nations Gen. Assembly, Universal

Declaration of Human Rights (1948) . . . . . . 15, 22

U.S.-Sponsored Torture: A Call for a Commission of

Inquiry, UNITARIAN UNIVERSALIST ASSOC.

(https://tinyurl.com/4rh8k99n) . . . . . . . . . . . 21, 22

What We Do, NRCAT

(https://tinyurl.com/xzr9rkk6) . . . . . . . . . . . . . . 22

With God on Our Side: The Rise of the Religious

Right in America, William Martin (1996) . . . . . 11

Pei-Yi Wu, Self-Examination and Confession of Sins

in Traditional China, 39 Harvard Journal of

Asiatic Studies 5 (June 1979). . . . . . . . . . . . 23, 24

INTEREST OF AMICI CURIAE1

Amici curiae (Amici) are various faith-based

organizations committed to ending the practice of

torture.

The National Religious Campaign Against Torture

(“NRCAT”) is an interfaith membership organization

comprised of more than 300 religious organizations

committed to advancing the values of human dignity,

human rights, and an end to torture—without

exception. Since its founding in 2006, NRCAT has

engaged in grassroots organizing, public education, and

state and national policy advocacy to achieve its

mission.

The Office of Peacebuilding and Policy (“OPP”) is a

faith-based advocacy group committed to representing

the values and interests of the Church of the Brethren

in the context of United States policy. As a historic

peace church, the Church of the Brethren has opposed

war and violence of all kinds since its inception in

1708. This includes a rejection of torture, officially

codified in a 2010 resolution, which informs the

education, organizing, and advocacy efforts of the OPP

on this issue.

The General Synod of the United Church of Christ

is the national representative and decision-making

body of the United Church of Christ, a Christian

Petitioner and Respondents have consented to the filing of this

amicus brief. No counsel for a party authored this brief in whole

or in part, and no person or entity besides the undersigned Amici

and their counsel made a monetary contribution intended to fund

its preparation or submission.

denomination comprised of over 800,000 members and

4,500 congregations. The General Synod of the United

Church of Christ has a long history of resolutions

passed in support of civil and human rights in the

United States and around the world.

The National Advocacy Center of the Sisters of the

Good Shepherd educates and develops strategies to

address social justice issues and advocates for the

transformation of society to the benefit of all people.

As such, we adamantly oppose the use of torture.

The Congregation of Our Lady of Charity of the

Good Shepherd, U.S. Provinces believes that each

person should be approached with the same care of

Jesus, the Good Shepherd. We are guided by the

principle that “One person is of more value than a

world.”

The use of torture is contrary to our

fundamental beliefs in the dignity of each person.

The Alliance of Baptists is a national organization

of Baptists seeking to cultivate the beloved community,

claiming our identity within the body of Christ in the

world and our solidarity with all creation. We welcome

and affirm all persons with full respect to gender,

sexual, racial, and ethnic identities and welcome and

affirm all persons with varying abilities, social

standing, or economic status. In 2012, the Alliance of

Baptists endorsed the “Statement of Conscience of the

National Religious Campaign Against Torture” which

states that torture violates the basic dignity of the

human person . . . any policies that permit torture and

inhumane treatment are shocking and morally

intolerable.”

The Friends Committee on National Legislation

(“FCNL”) is a national, nonpartisan Quaker

organization that lobbies Congress and the

administration to advance peace, justice, and

environmental stewardship. Governed by members of

the Religious Society of Friends, FCNL acts in faith to

create a world free from war, a society with equity and

justice for all, a community where every person’s

potential may be fulfilled and an earth restored. With

an intention to see that of God in every person, FCNL

supports and influences legislation and government

action by urging leaders in government to embrace

specific policies and actions. The issues we strive to

address are inextricably linked, leading us to focus on

the root causes and long-term consequences of

injustice, inequality, economic disparity,

disproportionate power, and violence.

The Maryknoll Office for Global Concerns

represents Maryknoll missioners – religious sisters,

brothers, priests, and lay missioners – serving around

the world, and the communities they accompany. We

advocate for peace, justice, and the integrity of

creation, bringing the voice and experience of

Maryknoll into policy discussions in the United

Nations, the United States and other governments,

international financial institutions, and the corporate

world. As missioners, we have accompanied survivors

of torture, among them members of our own

communities. We unequivocally reject the use of

torture in any form and for any reason and have

committed ourselves to continued advocacy nationally

and internationally for an end to torture.

The Reconstructionist Rabbinical Association

(“RRA”) is the professional and collegial association of

over 350 Reconstructionist rabbis across North

America. Based on our religious commitments and the

teachings of our faith, we are committed to advancing

the values of human dignity, human rights, and an end

to torture, without exception. The RRA has been an

active member and supporter of NRCAT’s religious

organizing against torture since NRCAT’s founding in

2006.

SUMMARY OF ARGUMENT

At this stage of the proceedings, Respondent Zayn

Al-Abidin Muhammad Husayn (“Respondent”) asks for

nothing more than an opportunity for the district court

to determine on remand whether non-privileged

information can be separated from privileged

information concerning his torture.

Information

provided by Respondents Mitchell and Jessen in other

instances and by the Senate Select Committee on

Intelligence suggests that such segregation is feasible.

Petitioner seeks to forego even that inquiry. Aside

from being contrary to established legal principles,

Petitioner’s stance strays from religious and moral

principles that have guided this country from its

inception. Across various religious traditions found in

the United States today, there exists a strong belief in

the sanctity and dignity of the individual and an

objection to the debasing and dehumanizing of the

individual through suffering and torture. Similarly,

there is a shared belief in how transparency and

confession can help right prior wrongs. Where there is

an opportunity to shine a ray of light on abhorrent

physical practices linked to our government without

running afoul of the states-secrets privilege, that

opportunity must be pursued with solemn resolve—and

that opportunity exists here. Only then, with honesty,

contrition, and forgiveness may we as a nation forge

ahead.

Accordingly, Amici respectfully request that this

Court affirm the decision of the U.S. Court of Appeals

for the Ninth Circuit. In doing so, Amici stress four

points.

First, our country is guided by a robust religious

tradition. From its founding to the present day, the

United States has been comprised of a diverse tapestry

of faiths, religions, and spiritual movements. Indeed,

from Washington’s Farewell Address, to Lincoln’s

better angels, to Reagan’s Shining City on a Hill, we

have invoked this tradition in order to lead this

country onward in its ascent towards a more just, free,

and tolerant society. Today, the United States Census

Bureau estimates the current U.S. population at over

331 million individuals.2 Recent polls suggest that at

least three quarters of the population identifies as

Christian, Jewish, Muslim, Buddhist, Hindu, or other

non-Christian faith.3 The variety of faiths represented

in America is an ever-present source of strength.

Second, nearly universal among the religious

traditions found in the United States (and around the

world) are a shared belief in human dignity and an

objection to torture. Religions of all faiths have spoken

out against torture and the infliction of needless

suffering upon individuals at the hands of mankind

and its earthly machinery. As one faith has prescribed,

“[r]emember those in prison as if you were their fellow

prisoners, and those who are mistreated as if you

yourselves were suffering.” Hebrews 13:3. When we

forget each other’s suffering and engage in the torture

of another human being, we violate that sense of

dignity for all involved.

See QuickFacts, United States Census Bureau

(https://www.census.gov/quickfacts/fact/table/US/PST045219).

Religious Landscape Study, PEW RESEARCH CENTER (2021)

(https://www. pewforum. org/religious-landscape-study/).

Third, there is also a shared religious belief in the

redemptive qualities of openness and confession.

Airing one’s faults, accepting responsibility, and

ultimately seeking forgiveness are powerful forces that

can mend religious adherents and institutions alike.

Fourth, running alongside these religious

traditions—valuing human dignity, rejecting torture,

and providing for confession—are our own uniquely

secular traditions embracing the same. Our founding

documents are imbued with a moral character, one

which recognizes the sanctity of the individual and

demands the treatment of humanity with respect. The

same principles of confession and redemption are

likewise woven into our legal system.

We, as a nation, have not always lived up to these

ideals. But we have nonetheless fought wars to secure

them and this same religious and moral imperative to

value human dignity is aligned with the secular laws

of our country. We can reflect these values by,

whenever possible, disclosing information related to

our government’s involvement in the mistreatment of

other human beings. Only then, acting with a humble

sense of openness and responsibility, can we better

align ourselves with the universal religious and moral

principles that have long been a part of our nation.

Amici fully respect the necessity of the state-secrets

privilege and the Court’s prior precedent. As such,

Amici recognize that this may or may not be a case in

which non-privileged information can ultimately be

segregated from privileged information. Amici only

argue that given our shared religious and moral

imperatives against torture, and our common belief in

the healing power of openness and confession, the

district court be allowed to try.

ARGUMENT

AMERICA IS COMPRISED OF A DIVERSE

FABRIC OF RELIGIONS

From its founding, the United States has been home

to a range of different religious groups. The first

Native Americans followed a variety of religious

systems.4 Other groups—like the Puritans escaping

the Church of England—came to the United States

seeking religious refuge.5 And though the vast

majority of early Americans were Christians, there was

much variety among Christians through the different

denominations and sects, such as Catholics,

Protestants, Quakers, and Lutherans to name a few.6

The United States has never lacked religious variety.

Although the United States is often idealized as one

of religious tolerance, this country has worked hard to

increase peaceful coexistence and acceptance among its

many religious groups. Hard work was necessary, due

to both the number of religious groups in the United

States and religious intolerance present from this

Native American Religion in Early America, Christine Leigh

Heyrman, NATIONAL HUMANITIES CENTER (2008) (http://national

humanitie scenter.org/tserve/eighteen/ekeyinfo/natrel.htm).

America’s True History of Religious Tolerance, Kenneth C. Davis,

SMITHSONIAN MAGAZINE (2010) (https://www.smithsonianmag.com/

history/americas-true-history-of-religious-tolerance-61312684/).

Religion and the Founding of the American Republic: Religion in

Eighteenth-Century America, L IBRARY OF C ONGRESS

(https://www.loc.gov/exhibits/religion/).

country’s beginning, sometimes even in state-sponsored

action.7 This hard work to secure and celebrate

religious diversity continues to this day. But it is also

indisputable that calls for acceptance of religious

groups have been with us from the time of our

founding. As Thomas Jefferson wrote while drafting a

bill for religious freedom in Virginia, “But it does me no

injury for my neighbor to say there are twenty gods or

no God. It neither picks my pocket nor breaks my

leg.”8

Under this (albeit at times imperfect) culture of

tolerance, the United States has grown, different

religious groups have flourished, and new groups have

come into existence.

During the Second Great

Awakening, starting in the early 1800s, religion spread

among Presbyterians, Methodists, and Baptists.9 The

number of Methodists, in particular, grew quickly.10

This was the time of the circuit riders, who preached to

people in the remote frontier locations, assembling in

fields for all-day camp meetings.11 In 1836, Joseph

Smith founded the first Latter-day Saints temple in

For example, early on Massachusetts and South Carolina had

official, state-sponsored churches. Id.

America’s True History.

Methodism and the Second Great Awakening, Joseph A. Thacker

at 47–48 (1975).

Id.

Religion in Nineteenth-Century America, Dr. Graham Warder,

DISABILITY HISTORY MUSEUM.

Kirtland, Ohio.12

The Third Great Awakening,

beginning in the late 1850s, emphasized a “muscular

Christianity,” and significantly grew the number of

Protestants.13 In 1879, Mary Baker Eddy founded the

Christian Science movement, which became the

fastest-growing religion in the United States for

decades, expanding to several hundred thousand

members by the late 1930s.14 And in the 1880s, the

Nevada Northern Paiute began the Ghost Dance

movement, a practice to awaken the spirits of the dead

to fight on behalf of the living.15 These are only a few

examples of religious growth and expansion from that

century.

The variety of religions strongly represented in the

United States only continued to increase throughout

the 1900s. In the early 1900s, peyote groups formed

the Native American Church.16 In 1906, Bosnian

immigrants who came to Chicago to help dig subway

tunnels formed Dzemijetul Hajrije, the country’s oldest

The Encyclopedia of American Religious History, Edward Queen

(1996).

Following the Broad-Shouldered Jesus: The College YMCA and

the Culture of Muscular Christianity in American Campus Life,

David P. Setran, AMERICAN EDN. HISTORY JOURNAL (2005).

Religious Events by Date, THE ASSOCIATION OF RELIGION DATA

ARCHIVES (https:// www. thearda.com /timeline/browse_all_events

_date.asp); see also The Truth about Mrs. Eddy, NEW YORK TIMES

(1906).

The Ghost-Dance Religion and Wounded Knee, James Mooney

(2012).

Melton’s Encyclopedia of American Religions, Eighth Edition, J.

Gordan Melton (2009).

existing Muslim organization.17 Buddhism, recognized

as arriving in the United States with Japanese

immigrants, was cemented with the establishment of

the Buddhist Church of America in 1944.18 Today, this

association has more than sixty temples.19 In 1949,

Billy Graham catapulted the southern evangelist into

the spotlight with an eight-week crusade event.20

Graham would later go on to meet with every president

of the United States until his death, beginning with

Harry Truman and ending with Donald Trump. With

the increase in Indian immigrants in the 1970s and

early 1980s, there was a burgeoning of Hindu temples

across the country.21 Throughout the 1900s, the

Jewish population increased from 1.5 million to 5.5

million.22 And of course, the most populous religious

groups, such as Protestants and Catholics, have only

grown in size since the beginning of this country’s

existence as well.23

Religious Events by Date, QUALITY DATA ON RELIGION (https: //

www.thearda.com/timeline/browse_all_events_date.asp).

Asian Religions in America, Thomas A. Tweed & Stephen

Prothero (1999).

Id.

With God on Our Side: The Rise of the Religious Right in

America, William Martin (1996).

The Pluralism Project: Hinduism in America, HARVARD

UNIVERSITY (https://pluralism.org/hinduism-in-america).

Total Jewish Population in the United States, JEWISH VIRTUAL

LIBRARY (https://www.jewishvirtuallibrary . org /jewish-populationin-the-united-states-nationally).

Religious Landscape Study at supra n.3.

Throughout the history of the United States, this

complex array of religious groups has played a critical

role in shaping our society. Even one of our states,

Rhode Island came into existence when Roger

Williams, a Puritan Separatist who preached against

the Church of England, was banished from the

Massachusetts Bay. Williams named the place he

settled “Providence” for “having a sense of God’s

merciful providence unto me in my distress.”24 The

drive to abolish slavery was largely led by Christian

preachers.25 Continuing the fight for racial equality,

the Southern Christian Leadership Conference, which

believed that racial equality was a Christian

imperative, utilized non-violent protests to combat

continued racism and the effect of Jim Crow laws.26

Aside from driving large movements, religion plays

smaller, everyday roles too—religion, naturally, helps

its followers navigate their own personal lives and

struggles.

Today there is more religious variety in the United

States than at any other point in our history.27

Christianity and its many denominations and sects,

including Presbyterians, Catholics, Orthodox,

Jehovah’s Witnesses, Lutherans, Methodists,

Evangelists, Anglicans, and Latter-day Saints, among

An Album of Rhode Island History, Patrick T. Conley.

The Abolition of the Slave Trade: Christian Conscience and

Political Action, John Coffey, CAMBRIDGE PAPERS (2007).

Southern Christian Leadership Conference, NATIONAL PARKS

SERVICE (https://www.nps.gov/subjects/civilrights/sclc.htm).

America’s Changing Religious Identity, Daniel Cox & Robert O.

Jones, PUBLIC RELIGION RESEARCH INSTITUTE (2017).

others, represent 65% of the U.S. population.28 There

are, of course, non-Christian groups as well, such as

Jews, Muslims, Buddhists, Sikhs, and Hindus, to name

a few. Currently, Jews comprise about 2% of the

population29 while Muslims, Buddhists, and Hindus

each constitute roughly 1% of the population.30 But

even for religions representing a smaller percentage of

the country’s total population, their membership still

numbers in the millions.

The religious fabric of the United States is

today—like it was in its beginning—complex, varied,

and ever-changing. From this fabric, we as a nation

have drawn strength to help guide us through periods

of change. And it is this diverse fabric to which we can

once again rely upon to help guide us in addressing our

country’s more recent indiscretions.

II.

OUR RELIGIOUS TRADITIONS SHARE A

COMMON BELIEF IN HUMAN DIGNITY

AND AN OBJECTION TO TORTURE

Many of these faiths making up America’s vast

religious fabric look very different from one another.

These differences, of course, can create doctrinal

debates among Americans. But one topic unifies

religions and faiths: Torture is irreligious, immoral,

and unethical. This is because torture contradicts the

Measuring Religion in Pew Research Center’s American Trends

Panel, PEW RESEARCH CENTER (2021) (https://www.pewforum.org

/2021/01/14/measuring-religion-in-pew-research-centers-americantrends-panel/).

America’s Changing Religious Identity.

Id.

fundamental value and dignity of human life, which

reflects “humankind’s . . . inherent worth in God’s

eyes—all without exception, by virtue of their

creation.”31

A. Religions share the core belief that

human life is sacred.

The Bible teaches that human life is sacred.

Indeed, “God created mankind in his own image, the

image of God.” Genesis 1:26–27. And because God

“created us in His image and likeness,” “He has given

us a unique dignity, calling us to live in communion

with Him, in communion with our sisters and brothers,

with respect for all creation.”32 In other words, each

individual human life is uniquely sacred because of the

value God placed on it.

The Quran teaches the same fundamental value:

“take not life, which God hath made sacred.” The

Quran 6:151; see also id. at 5:32 (“[I]f anyone saved a

life, it would be as if he saved the life of all mankind.”).

Indeed, the Quran, like the Bible, declares that

David L. Johnston, A Muslim & Christian Orientation to Human

Rights: Human Dignity & Solidarity, 24 Ind. Int’l & Comp. L. Rev.

899, 901 (2014).

Recognize the Dignity in Every Person, VATICAN MEDIA (Aug. 12,

2020) (quoting Pope Francis) (https://tinyurl.com/enmuajx5); see

also For the Health of the Nation, NAT’L ASSOC. EVANGELICALS, 25

(2018) (https://tinyurl.com/p8zxk45m) (“Because God created

human beings in His image, every human life from conception to

death bears the image of God and has inestimable worth.”);

Dignitatis Humanae, Pope Paul VI, THE VATICAN (Dec. 7, 1965)

(https://tinyurl.com/5bvz7m3c).

humans “represent God on earth.”33 And thus, in both

“the Qur’an and the Bible—human beings are brought

into being at the apex of creation and given the

responsibility to rule over all the rest with great care,

wisdom, and justice.”34

Other religions agree. Buddhism, for example,

gives humans a “unique status” in the “scale of

existence,” with three of the five cardinal (and most

serious) offenses involving the taking of human life.35

And Hinduism, along with Jainism, teaches “the

fundamental need for non-violence: ‘All beings are fond

of life; they like pleasure and hate pain, shun

destruction and like to live, they long to live. To all,

life is dear.’”36 This has long been true for all peaceloving States: “All human beings are born free and

equal in dignity and rights.”37

Our shared humanity, then, prioritizes the value

and dignity of human life.

Johnston, supra n.32, at 901 (quoting The Quran 2:30).

Id. at 902.

See John D’Arcy May, Human Dignity, Human Rights, and

Religious Pluralism: Christian and Buddhist Perspectives, 26

Buddhist-Christian Studies 51 (2006); Five Cardinal Sins, Soka

Gakkai, NICHIREN BUDDHISM LIBRARY (last visited Aug. 15, 2021)

(https://www.nichirenlibrary.org/en/dic/Content/F/35).

Ahimsa: Its Theory & Practice in Gandhism, Ram Ponnu,

GHANDHIAN INSTS. (last visited Aug. 15, 2021) (quoting The

Acharanga Sutra, Chapple 11) (https://tinyurl.com/7dp32hb).

United Nations Gen. Assembly, Universal Declaration of Human

Rights, Art. 1 (1948).

In sum, “all universal cultures, be they religious or

secular, ancient or modern, commonly agree on the

inviolability of all human beings.”38 America’s “city . . .

on a hill” is no exception. See Matthew 5:14.

B. Torture conflicts with the

dignity rooted in all religions.

human

The starting point of human dignity—that everyone

has the inherent right to be valued and respected—

cannot co-exist with torture. This is not controversial

among religions. For example, believers from across

the religious spectrum have joined to oppose torture,

including “Methodists, Presbyterians, Jews, Muslims,

Episcopalians, Lutherans, Quakers and Roman

Catholics.”39 These faiths all recognize that torture is

“a violation of the human person’s God-given dignity.”40

A prime example is Islam. According to Prophet

Muhammad, “Allah will torture those who tortured

people in this world.” Sahin Muslim 2613. That

teaching is rooted in the divine connection between

humans and God: “Do not torture the creation of Allah

the Exalted.” Al-Adab Al-Mufrad 188. Indeed, the

Quran goes a step further, explaining that persecution,

and by extension, torture, is worse than killing. See

The Quran 2:191; see also id. at 6:151 (referencing

Johnston, supra n.32, at 905 (citation omitted).

Interfaith Grp. Speaks Out Against Torture, Chip Somodevilla,

ASSOC. PRESS (2008) (https://tinyurl.com/383cw4eb) (“About 300

houses of worship” joined NRCAT in a month-long campaign

protesting torture).

See, e.g., Torture is a Moral Issue: Study Guide 3, U.S. Conf. of

Catholic Bishops, 5–10 (2012) (https://tinyurl.com/43yx7e5m).

“justice and law” to justify only the latter). Instead,

the Prophet spoke about dealing with enemies “in the

way they treated him”—giving “food in spite of love for

the needy, the orphan, and the captive.” Id. at 768–9.41

Jesus’s teachings lead to the same result. This is

perhaps most clear in the Sermon on the Mount, where

Jesus emphasized love and humility over force. Jesus

preached, “Blessed are the merciful, for they will be

shown mercy. Blessed are the pure in heart, for they

will see God. Blessed are the peacemakers, for they

will be called children of God.” Matthew 5:7–9; see also

Psalm 37:11.

This requires compassion and

forgiveness for others, especially towards “an offender,

enemy, prisoner, or other person under one’s power.”

Am. Heritage Dictionary 821 (New College Ed. 1980)

(defining “mercy”). That message strikes at the heart

of the New Testament: “But love your enemies, do good

to them” and “[b]e merciful, just as your Father is

merciful.” Luke 6:35–36.

Jesus embodied these teachings. He healed the

sick, welcomed strangers, and even pardoned his own

persecutors and executioners. See Luke 23:34 (“Father,

forgive them, for they do not know what they are

doing.”). What’s more, Jesus was tortured and

crucified for this very reason—so that no one else

would need to be “wounded,” “pierced,” or “bruised” in

the same way ever again. See Isaiah 53:5; see also

John 3:16. Failing to take steps that would help

expose and end the practice of torture undermines that

sacrifice. See, e.g., 1 Peter 2:24.

See also 40 Hadiths on Social Justice, Omar Suleiman, YAQUEEN

INST. (2019) (https://tinyurl.com/36625jz6).

C. Churches of all faiths call

governments to end torture.

for

This biblical perspective has inspired countless

churches to condemn torture. For example, Pope

Francis, the head of the Catholic Church, recently

proclaimed, “Torture is a mortal sin!”42 A “mortal sin”

can lead to “the eternal death of hell” because it

“destroys charity in the heart of man by a grave

violation of God’s law” and “turns man away from

God.”43 Torture, by definition, is godless; destroying

both the abuser and the abused. See United Nations

Gen. Assembly, Convention Against Torture & Other

Cruel, Inhuman or Degrading Treatment or

Punishment, Art. 1 (1984) (defining “torture” to include

“any act by which severe pain or suffering, whether

physical or mental, in intentionally inflicted on a

person”). That is why the Central Conference of

American Rabbis, the oldest and largest rabbinic

organization in North America, urged the United

States to “[d]enounce and oppose the use of torture and

other forms of prisoner coercion in violation of the

Geneva Conventions.”44

Pope Says Torture is a Mortal Sin; Vatican Urges Help for Drug

Abusers, Carol Glatz, CRUX (2018) (https://tinyurl.com/4h3r59rb).

Pope John Paul II, The Catechism of the Catholic Church, Part

3, § 1, Ch. 1, Art. 8 (IV) (1992) (https://www.vatican.va/archive/EN

G0015/__P6C.HTM).

The Use of Torture or Lesser Forms of Coercion to Obtain

Information from Prisoners, Cent. Conf. Am. Rabbis (2005)

(https://tinyurl.com/hxs3ufbh).

Evangelical Christians have made a similar

declaration. “We renounce the use of torture and cruel,

inhuman, and degrading treatment by any branch of

our government (or any other government).”45 This

declaration is grounded in biblical teachings that

establish “God’s love and the dignity it gives to all

human beings.”46 As a result, “every human life has

the right not . . . to be tortured.”47

The same can be said of the Episcopal Church. The

Episcopal Church’s Baptismal Covenant includes the

call to its people: “Will you strive for justice and peace

among all people, and respect the dignity of every

human being?” The people respond: “I will, with God’s

help.”48 More specifically, the 76th General Convention

of the Episcopal Church “condemn[ed] the use of

torture and the practice of extraordinary rendition by

the United States and any government, individual or

organization in any location in the world” and declared

that “Episcopalians shall not engage in, order or assist

in the torture of any human being, and shall not

counsel the use of torture for intelligence gathering or

any other purpose.”49

An Evangelical Declaration Against Torture, NAT’L ASSOC.

EVANGELICALS, 7.12(a) (2007) (https://www.nae.net/an-evangelicaldeclaration-against-torture/).

Id. at 2.1–3.7.

For the Health of the Nation, supra n.33, at 38.

Holy Baptism, The (Online) Book of Common Prayer (last visited

Aug. 15, 2021) (https://tinyurl.com/2f5vtzhr).

Resolution No. 2009-C020, Condemn Torture and Extraordinary

Rendition, 76th Gen. Convention, The Archives of the Episcopal

Church (last visited Aug. 15, 2021) (https://tinyurl.com/sb6bpkmv).

Protestants, Methodists, and Quakers all agree.

Protestants have officially called on the United States

to prevent torture everywhere.50 In doing so, the

Disciples of Christ echoed the same universal

concerns—i.e., that “any and all use of torture is

unacceptable—that it is contrary to traditional

understandings of Scripture and in opposition to the

principles of dignity, fairness and due process that are

the bedrock of a democratic society.”51 Methodists have

joined that call, taking the official position that “the

mistreatment or torture, and other cruel, inhumane,

and degrading treatment or punishment of persons by

governments for any purpose violates Christian

teaching.”52 Methodists have called on all Christians to

condemn torture “wherever and whenever it occurs.”53

So have Quakers, who see torture as “the worst that

humans do to one another.”54

This condemnation expands well-beyond the JudeoChristian community. The Jain Center of America, the

first Jain temple organized in the United States,

See Christian Church (Disciples of Christ), GA-1329, Supporting

a Treaty for the Prevention of Torture, 1–3 (2007)

(https://tinyurl.com/2wmh3bjr).

Id. at 2.

See The Book of Discipline, Social Principles: The Political

Community, United Methodist Church (2016)

(https://tinyurl.com/388s6tas).

Id.

See Mission, Quaker Initiative to End Torture (last visited Aug.

15, 2021) (https://www.quit-torture-now.org/mission/) (quoting

Hebrews 13:3 (“Remember those who . . . are being tortured, as

though yourselves were being tortured.”)).

embraces the ancient Indian principle of nonviolence,

or “ahimsa.”55 Their scriptures are clear: “Don’t injure,

abuse, oppress, enslave, insult, torment, torture, or kill

any creature or living being.”56 And much like the

teachings in Islam and Catholicism, “Harm done to

other beings is considered harm to oneself.”57 This

matches the altruistic teachings of His Holiness, the

Dalai Lama, who recognizes that “love and compassion”

for “the human family as a whole” is the key principle

to ensure dignity for “ourselves, our families, our

community and country.”58

The list does not stop there. The Unitarian Church

sees torture as violating “the basic dignity of the

human person.”59

Torture goes against the

fundamental belief that all persons have “inherent

worth and dignity,” and it “degrades everyone

involved—from policy-makers to perpetrators to

victims.”60 Id. Worse still, torture “contradicts our

See Jain Websites, JAIN CTR. OF AM. (last visited Aug. 15, 2021)

(https://www.nyjaincenter.org/Education/Jain-Websites).

Ponnu, supra n.37.

Id.

Human Rights, Democracy & Freedom, Tenzin Gyatso, His

Holiness the 14th Dalai Lama of Tibet (last visited Aug. 15, 2021)

(https://tinyurl.com/haan9yuv).

U.S.-Sponsored Torture: A Call for a Commission of Inquiry,

UNITARIAN UNIVERSALIST ASSOC. (July 1, 2009)

(https://tinyurl.com/4rh8k99n).

Id.

nation’s most cherished values.”61 Put simply, there is

no place for torture in America.

This message tracks secular ideals, too. The United

Nations, for example, avowed that “[n]o one shall be

subjected to torture or to cruel, inhuman or degrading

treatment or punishment.”62

And the Geneva

Convention has long prohibited “violence to life and

person,” including “cruel treatment and torture.” The

Geneva Convention, Art. 3(1)(a) (Aug. 12, 1949). This

prohibition extends to torture “at any time and in any

place whatsoever.” Id.

Without question, people of all faiths agree that

torture “degrades humanity and wounds the soul of all

involved.”63

III.

OUR RELIGIOUS TRADITIONS SHARE A

COMMON BELIEF IN REDEMPTION

THROUGH CONFESSION

In the various historical teachings of the world’s

religious traditions—many of which are represented

today in the United States—there is a near universal

belief in the act of confession. It is through this ability

to openly acknowledge and repent for one’s sins that

leads to redemption and the bettering of the human

spirit and society as a whole.

Id.

Universal Declaration of Human Rights, supra n.38, Art. 5.

What We Do, NRCAT (last visited Aug.

(https://tinyurl.com/xzr9rkk6).

15, 2021)

The religious practice of airing potential misdeeds,

or at least unburdening oneself of keeping them secret,

is perhaps most prominently associated with

Catholicism. The practice was famously codified in

1215 A.D., when Pope Innocent III decreed the Omnis

utriusque sexus.64 Shortly thereafter, Thomas Aquinas

wrote extensively on the subject, exploring the

connection between confession and salvation.65 Among

the devoted, the practice goes back even further.66

Acknowledgment, repentance, and confession of sin

were integral parts of the Zoroastrian profession of

faith, going back centuries if not millennia before the

Common Era.67

“Confession as a regular feature of religious life has

a long history in India, going back to the Vedic times [c.

1750–500 BCE]. With the Buddhists the rite of

confession, called uposatha in Sanskrit, was as ancient

as the first establishment of monastic orders.”68 Twice

a month, after “fasting and sacrifices ... there was an

Conciliorum aecumenicorum decretal, ed. J Alberigo (3d ed.

Bologna, 1973).

Thomas Aquinas, The Summa Theologica, Supplement, q. VI,

art. 1 (Fathers of the English Dominican Province trans.) (last

visited Aug. 17, 2021) (https://tinyurl.com/b2ucxk9f).

Alexander Murray, Confession before 1215, 3 Transactions of the

Royal Historical Society 51 (1993).

Confessions, Mary Boyce, 1 A History of Zoroastrianism 320–21

ENCYCLOPAEDIA IRANICA ONLINE (1975) (last visited August 1,

2021) (https://tinyurl.com/4uahc4y7 ).

Pei-Yi Wu, Self-Examination and Confession of Sins in

Traditional China, 39 Harvard Journal of Asiatic Studies 5, 10

(June 1979).

interrogatory portion, during the recitation of which a

guilty monk would confess his offences.”69

In Taoist societies of the second century, individuals

believed in a form of faith healing that incorporated the

confessional; “The patients were asked to kneel, make

obeisance, and confess their offences.”70 Muslims

likewise share this belief in and celebration of

accountability.71

And when archeologists uncovered ancient texts of

Manichaeism at Turfan in Xinjiang, China, those texts

included “hymnbooks [and] forms for the confession of

sins.”72

In many religious traditions, accountability and the

airing of facts comes as a matter of conscience which,

in turn, is a mix of personal and supernatural forces.

To Reformation theologian John Calvin, conscience is

“an additional witness” to mankind’s acts which

“permits them not to conceal their sins, or to elude

accusation,” something “which places man before the

Divine tribunal, is appointed, as it were, to watch over

man, to observe and examine all his secrets, and

Id. (citing Early Buddhist Monachism, Sukumar Dutt, 100–104

(1924)).

Id. at 6.

The Holy Qur-an: Text, Translation, and Commentary 1772,

Abdullah Yusuf Ali (1938) (“Then shall anyone who has done an

atom’s weight of good, see it! And anyone who has done an atom’s

weight of evil, shall see it”) (translating The Quran 99:7–8).

F. Crawford Burkitt, The Religion of the Manichees, 2 The

Journal of Religion 263, 265 (May 1922).

nothing may remain enveloped in darkness.”73 “Hence

the old proverb, conscience is a thousand witnesses.”74

To many, the airing of facts—potentially unpleasant

facts, in particular—is a psychological imperative of

one’s conscience, tied in with the religious impulse.

“The natural origin and fountain-head of confession is

to be found in an instinct of human nature, which leads

us to communicate to others any strong emotion

present to the soul, any powerful influence engendering

in us joy or sorrow, hope or fear, self-approbation or

self-reproach.”75 Keeping unpleasant facts in the dark,

away from the cleansing light of accountability, does

not simply fail to do the correct thing; rather, it risks

psychological discomfort for the concealer. “If some

counter motive render concealment necessary, the

suppression will be painful to us, and will aggravate

our suffering, where the influence present to the soul

is one unfavorable to its happiness.”76

Faced with the knowledge that one has wronged,

other religions agree that one should face that

knowledge so that one may perform the proper

penance, the first step toward accountability. That is

the tradition in Second Temple Judaism;77 in the

2 Institutes of the Christian Religion 91, tr. John Allen, 6th

American ed. (Philadelphia 1936).

Id.

Rev. R. F. Clarke, The Practice of Confession in the Catholic

Church, 169 The North American Review 829, 831 (Dec. 1899).

Id.

Penitential Prayer in Second Temple Judaism: The Development

of a Religious Institution, Rodney A. Werline (1998)

Qumranic tradition embodied in the Dead Sea Scrolls;78

the Rabbinic tradition;79 as well as in the Islamic

tradition.80

In both the Talmudic tradition and early Christian

literature, the concept of repentance is associated with

the imagery of resolving a debt.81 With potential

wrongs maintained under a shroud of secrecy, that

debt remains unsatisfied in perpetuity.

No religious tradition imposes a mandate of

perfection upon its adherents. But they do impart the

wisdom of acknowledging wrongs rather than keeping

them secret, and seeking penance to extinguish the

moral debt. An individual, or society, who has

wronged—but faces and seeks accountability for the

wrong—remains in harmony with creation. Indeed, to

the Egyptian Christian Monk Abba Poemen the Great,

one who has committed a wrong but repented is to be

preferred to one who committed no wrong at all, “for

Bilhah Nitzan, “Repentance in the Dead Sea Scrolls,” in 2 The

Dead Sea Scrolls after Fifty Years: A Comprehensive Assessment

145–70 (ed. Peter W. Flint and James C. VanderKam 1998–99)

Some Aspects of Rabbinic Theology, Solomon Schecter 293–343

(1909).

Mahmoud Ayoub, “Repentance in the Islamic Tradition,” in

Repentance: A Comparative Perspective 96–121 (ed. Amitai

Etzioni and David E. Carney 1997). See also Yishai Kiel,

Penitential Theology in East Late Antiquity: Talmudic, Zorastrian,

and East Christian Reflections, 45 Journal for the Study of

Judaism in the Persian, Hellenistic, and Roman Period 551 (2014).

See Sin: A History 43–132, Gary Anderson, (2009).

the former possesses a humble mind and the latter

esteems himself in his thoughts a just man.”82

IV.

THE RELIGIOUS OBJECTIONS TO

TORTURE AND BELIEF IN CONFESSION

ARE REFLECTED IN OUR SECULAR

LEGAL TRADITIONS

Just as human dignity is the bedrock of various

religious traditions, human dignity is also one of the

foundation stones on which so many of our

Constitutional rights are built. As Justice Thomas

explained, “[h]uman dignity has long been understood

in this country to be innate. When the Framers

proclaimed in the Declaration of Independence that ‘all

men are created equal’ and ‘endowed by their Creator

with certain unalienable Rights,’ they referred to a

vision of mankind in which all humans are created in

the image of God and therefore of inherent worth. That

vision is the foundation upon which this Nation was

built.” Obergefell v. Hodges, 576 U.S. 644, 735 (2015)

(Thomas, J., dissenting).

This core belief in human dignity gives rise to

familiar principles of individual autonomy, privacy,

and freedom of expression. See United States v.

Ferrara, 771 F. Supp. 1266, 1285–86 (D. Mass. 1991).

Those principles in turn animate the rights and

protections contained in the Constitution and the Bill

of Rights. See Powell v. Allstate Ins. Co., 655 So. 2d

354, 358 (Fla. 1995) (“The founding principle upon

Quoted in The Wit and Wisdom of the Christian Fathers of Egypt:

The Syrian Version of the Apophthegmata Patrum by Anan Isho of

Beth Abhe 181–82, Ernest A. Wallis Budge (1934).

which this nation was established is that all persons

were initially created equal and entitled to have their

individual human dignity respected. This guarantee of

equal treatment has been carried forward in explicit

provisions of our federal and state constitutions.”). In

particular, the tradition of respecting the sanctity of

the physical individual and the rejection of violating

that sanctity through torture, is reflected most clearly

in the Eighth Amendment, as well as the Fifth and

Fourth Amendments.

The Eighth Amendment’s prohibition of cruel and

unusual punishments is guided by the founding

principle of innate human dignity. See Trop v. Dulles,

356 U.S. 86, 100 (1958). This prohibition “is a basic

part of the American constitutional heritage” and

encompasses both the concept that “punishment should

be suited to the crime and the idea that punishment

should not be barbarous.” Carmona v. Ward, 576 F.2d

405, 425 (2d Cir. 1978). Although “the State has the

power to punish, the Amendment stands to assure that

this power be exercised within the limits of civilized

standards. Fines, imprisonment and even execution

may be imposed depending upon the enormity of the

crime, but any technique outside the bounds of these

traditional penalties is constitutionally suspect.” Trop,

356 U.S. at 100.

Interpreting the Eighth Amendment, this Court has

consistently concluded that torture and other cruel

punishments are forbidden. E.g., Estelle v. Gamble, 429

U.S. 97, 102 (1976); In re Kemmler, 136 U.S. 436,

446–47 (1890); Wilkerson v. Utah, 99 U.S. 130, 135–36

(1878). Justices have arrived at this conclusion in

different ways. But one reason why torture and other

cruel punishments violate the Eighth Amendment is

because these punishments “do[] not comport with

human dignity.” Furman v. Georgia, 408 U.S. 238, 270

(1972). (Brennan, J., concurring). “The basic concept

underlying the Eighth Amendment is nothing less than

the dignity of man.” Trop, 356 U.S. at 100. And a

punishment must therefore “not be so severe as to be

degrading to the dignity of human beings.” Furman,

408 U.S. at 271 (Brennan, J., concurring).

The language of the Eighth Amendment’s cruel and

unusual punishments clause comes from the English

Bill of Rights of 1689. Furman, 408 U.S. at 319

(Marshall, J., concurring). Although there are differing

interpretations of what the English Bill of Rights was

intended to prohibit, “there is no doubt whatever

that . . . our Founding Fathers intended to outlaw

torture and other cruel punishments” by adopting this

language for the Eighth Amendment. Id.

Around the time of the founding, states adopted

prohibitions against cruel and unusual punishments

similar to the one found in the English Bill of Rights.

Furman, 408 U.S. at 319 (Marshall, J., concurring).

And during the debates of the various state

conventions called to ratify the Constitution, some

delegates had “great concern for the omission [from the

Constitution] of any prohibition against torture or

other cruel punishments.” Id. at 320. Patrick Henry’s

comments during the Virginia Constitutional

Convention, for one, are insightful. Henry expressed

his concern that Congress “may introduce the practice

of France, Spain, and Germany—of torturing, to extort

a confession of a crime” to “punish with still more

relentless severity.” 3 J. Elliot’s Debates 447–48 (2d ed.

1876). If Congress were to follow that approach, Henry

opined, “[w]e are then lost and undone.” (Id.)

Members of the First Congress shared Henry’s

view. Furman, 408 U.S. at 321 (Marshall, J.,

concurring). And the Eighth Amendment was later

ratified with its prohibition of cruel and unusual

punishments.

The right to non-excessive bail secured by the

Eighth Amendment and various state constitutions is

also founded on the principle of human dignity. The

Framers “considered that pretrial release on noncapital charges was a fundamental right founded in

freedom and human dignity, reflected in the

everpresent presumption of innocence, and requiring

firm articulation in the Constitutions.” State v.

Johnson, 294 A.2d 245, 250 (N.J. 1972). Without the

right to bail before trial and, thus, the ability to

prepare a defense unhampered by pre-trial

incarceration, “the presumption of innocence, secured

only after centuries of struggle, would lose its

meaning.” Stack v. Boyle, 342 U.S. 1, 4 (1951).

This founding principle of human dignity is present

in the Fifth Amendment’s guarantee against selfincrimination. See Ullmann v. United States, 350 U.S.

422, 445 (1956) (Douglas, J., dissenting). When the

Fifth Amendment was adopted, “[f]orce and violence

were then the only means known to man by which a

government could directly effect self-incrimination. It

could compel the individual to testify—a compulsion

effected, if need be, by torture.” Olmstead v. United

States, 277 U.S. 438, 473 (1928) (Brandeis, J.,

dissenting). Through the Fifth Amendment, the

Framers “created the federally protected right of

silence and decreed that the law could not be used to

pry open one’s lips and make him a witness against

himself.” Ullmann, 350 U.S. at 446 (Douglas, J.,

dissenting). This right protects against more than just

“self-accusation under legal compulsion.” Id. at 445–46.

It is “a safeguard of conscience and human dignity and

freedom of expression as well.” Id. at 445.

Concern for human dignity also animates the

Fourth Amendment. The Fourth Amendment’s

prohibition of unreasonable searches and seizures “was

fashioned against the background of knowledge

[gradually developed in English law] that unrestricted

power of search and seizure could also be an

instrument for stifling liberty of expression.” Stanford

v. Texas, 379 U.S. 476, 484 (1965) (quoting Marcus v.

Search Warrant, 367 U.S. 717, 729 (1961)). To guard

against this danger, the Framers drafted the Fourth

Amendment to “safeguard[] not only privacy” but also

freedom of expression and “human dignity.” Id. at

484–85 (quoting Frank v. Maryland, 359 U.S. 360, 376

(1959) (Douglas, J., dissenting)); see also Schmerber v.

California, 384 U.S. 757, 767 (1966) (“The overriding

function of the Fourth Amendment is to protect

personal privacy and dignity against unwarranted

intrusion by the State.”).

Similarly, the religious concepts of confession and

repentance as virtues are reflected in our legal system.

This Court has acknowledged that “confessions . . . are

an ‘unmitigated good,’” in our secular legal tradition.

Maryland v. Shatzer, 559 U.S. 98, 108 (2010) (quoting

McNeil v. Wisconsin, 501 U.S. 171, 181 (1991)).

Indeed, an entire body of law has arisen to ensure that

confessions are voluntary and a product of one’s free

will in accordance with the Fifth Amendment’s

protection against self-incrimination.

In perhaps its most obvious form, the importance of

transparency, confession, and personal responsibility

can be seen in the U.S. Sentencing Guidelines. In

particular, the Guidelines provide for a reduction to a

defendant’s offense level “[i]f the defendant clearly

demonstrates acceptance of responsibility for his

offense.” U.S.S.G. § 3E1.1. No fewer than eight

considerations can then be assessed to determine the

defendant’s acceptance of responsibility. Id.

Post-conviction, therapeutic and rehabilitative

programs also emphasize the positive effects of

confession and acceptance of responsibility. Often a

condition of probation, court-mandated therapy

programs rely on the psychological benefits and

corrective powers of confession.83 “Public truth-telling

within the legal system . . . can serve a number of

important functions that are beneficial to both

individuals and society.”84 In addition to bestowing

rehabilitative benefits on the offender, open

Scott Michael Solkoff, Judicial Use Immunity & the Privilege

Against Self-Incrimination in Court Mandated Therapy Programs,

17 Nova L. Rev. 1441, 1448-52 (1993).

C. Quince Hopkins, Tempering Idealism with Realism: Using

Restorative Justice Processes to Promote Acceptance of

Responsibility in Cases of Intimate Partner Violence, 35 Harv. J. L.

& Gender 311, 320 (2012).

acknowledgment helps society prevent similar abuses

in the future: “others who witness the public admission

are both on notice and better equipped to confront

future offending behavior and hold the offender

accountable.”85

In the corporate context, showing remorse and

accepting responsibility can lead to the avoidance of

criminal prosecution altogether. Non-prosecution

agreements and deferred prosecution agreements have

become powerful tools in the prosecutor’s arsenal

against corporate wrong-doing.86 One twenty-year

study found that nearly 70% of non-prosecution

agreements and deferred prosecution agreements

contained provisions requiring the corporate entity to

acknowledge and accept responsibility for the

commission of past wrongs.87

In cases involving torture and mistreatment of an

individual, these secular traditions intersect with the

religious principles objecting to torture and welcoming

confession embraced by so many religious practitioners

in America. By its very nature, torture attempts to

strip a person of their dignity. Barbaric practices have

been condemned not just because they are “attended

with acute pain and suffering” but also because “they

treat members of the human race as nonhumans, as

Id. at 328.

See Wulf a Kaal & Timothy A. Lacine, The Effect of Deferred &

Non-Prosecution Agreements on Corporate Governance: Evidence

from 1993-2013, 70 Bus. La. 61 (2014).

Id. at 114.

objects to be toyed with and discarded.” Furman, 408

U.S. at 272–73 (Brennan, J., concurring).

By attempting to strip the humanity from its

victims, torture seeks to deny its victims the

inalienable rights they enjoy simply because they are

human. See Obergefell, 576 U.S. at 735 (Thomas, J.,

dissenting) This dehumanizing effort demeans all of

us—and it inherently conflicts with the belief in innate

human dignity upon which this nation was built.

In short, torture shatters the sanctity of life that

God created. It has no place in humanity. Yet, “all the

good moral theory and theology will go nowhere”

unless governments, like the United States, have the

courage to act “with compassion and solidarity with

their neighbors.”88

In the same way that religious scholars have spoken

out against human suffering and recognized the value

of openness and confession, our courts can demonstrate

those same values by ensuring that where there is an

opportunity to condemn the torture of individuals and

bring such circumstances to light, that opportunity is

taken.

Here, affirming the decision of the appellate court,

and giving the district court a chance to segregate

privileged from non-privileged material regarding the

treatment of Respondent, would send a clear message

that these values in our religious traditions and secular

laws are alive and well.

See Johnston, supra n.32, at 919–20 (quoting Pope Francis).

CONCLUSION

For the foregoing reasons, Amici respectfully submit

that the Court should affirm the decision of the Court

of Appeals below.

Respectfully submitted,

ANNA M. GREVE

BRIAN A. MORRIS

TAFT STETTINIUS &

HOLLISTER LLP

425 Walnut Street, Suite 1800

Cincinnati, Ohio 45202

VIVEK R. HADLEY

TAFT STETTINIUS &

HOLLISTER LLP

One Indiana Square, Suite 3500

Indianapolis, Indiana 46204

MICHAEL K. ROBERTSON

JONATHAN N. OLIVITO

DAVID J. BUTLER

Counsel of Record

TAFT STETTINIUS &

HOLLISTER LLP

65 E. State Street, Suite 1000

Columbus, Ohio 43206

(614) 334-6167

dbutler@taftlaw.com

Counsel for Amici Curiae

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