Ordinary Torture
Vandy scholar explains why Guantanamo and Abu Ghraib are not aberrations
by Maria Browning
Much of Dayan’s scholarly work has focused on the history of slavery, particularly the slave’s unique status as both property and person. She argues that the American attitude to punishment has been persistently shaped by slavery, which created in our legal tradition a notion of a person who is “civilly dead”—that is, someone who is entitled to no consideration beyond the most basic animal care. Slaves were considered to be such persons, and the 13th Amendment to the Constitution expressly confers that same status on prisoners by prohibiting slavery and involuntary servitude “except as a punishment for a crime whereof the party shall have been duly convicted.”
The Eighth Amendment outlaws cruel and unusual punishment, but, as Dayan explains, a series of Supreme Court rulings has increasingly narrowed the definition of “cruel and unusual.” According to these precedents, a prisoner is protected only from an actual sentence designed to cause excessive pain, or from wanton, deliberate cruelty—from an act, that is, designed specifically to cause pain, and with the infliction of pain as its primary purpose. Any other kind of mistreatment, even if it is clearly cruel, is permitted as long as it is deemed necessary for security, confinement or the enactment of a legal punishment. It’s OK, therefore, to shackle women inmates during childbirth, subject a condemned prisoner to multiple execution attempts, or psychologically cripple offenders through perpetual solitary confinement—all practices currently permitted in the U.S. penal system.
Dayan argues that these precedents—particularly the Supreme Court’s insistence on harmful intent as a measure of culpability—created the framework for the infamous “torture memos” of 2002, in which the Bush administration sought to define the limits for lawful abuse of terror detainees. In effect, says Dayan, the memos declare that an interrogator cannot be held responsible “if he had a ‘good faith belief’ that whatever he did would not result in mutilation or death. The results—a mutilated, blind, or dead body—get defined away by the vain search for intent.” In other words, almost anything short of overt sadism or premeditated murder would not meet the legal standard for abuse. Such reasoning may be repulsive by any sensible ethical standard, but according to Dayan it is firmly grounded in American law.
In his eloquent introduction to The Story of Cruel and Unusual, legal scholar Jeremy Waldron notes that, “it is a depressing story that Dayan has to tell, because it goes against the grain of what we want to tell ourselves.” Indeed, this brief book makes unhappy but important reading for Americans of any political stripe. It’s a provocative reality check, badly needed in this time of competing illusions.
