Memos in 2002 and 2003 written by White House lawyers to President Bush effectively promoting the use of torture are shocking, but not because of faulty legal arguments, says a Vanderbilt University professor.
The memos are striking because they “are legally correct” based on precedents in American law, said Colin Dayan, the Robert Penn Warren Professor in the Humanities at Vanderbilt.
However, that doesn’t make it right, said Dayan, author of The Story of Cruel & Unusual, which shows how the Eighth Amendment barring cruel and unusual punishment has been “gradually eviscerated” by court decisions. The book was released by The MIT Press.
The reasoning of administration lawyers is correct because it stretches back to the legacy of slavery, when judges strained to accommodate the notion that “All men are created equal” with the fact that in practice some folk were treated as beasts of burden with no rights at all.
“It’s a sad commentary on our country that a number of fine lawyers have put their skills to defining away the limits of torture,” Dayan said. “It’s crucial to understand that the law itself as practiced by the current administration is using a history of law from which we would prefer to think we have broken away.”
The Story of Cruel & Unusual chronicles how carefully parsed words by lawyers have, especially beginning in the late-1980s under Supreme Court Chief Justice William Rehnquist, opened the door to the abuse of prisoners in the United States and so-called “illegal enemy combatants” held in bases like Guantanamo Bay.
“The legal nullification of personhood that began with slavery has been perfected through the logic of the courtroom and adjusted to apply to prisoners,” Dayan writes in The Story of Cruel & Unusual. “This reasoning – so long ignored, except by some corrections officials – was carefully studied by the White House lawyers charged with reviewing the legal limits of torture.”
This has led to detainees and prisoners – many of them non-violent offenders – facing increasingly abusive treatment,” Dayan said.
“We are not as virtuous as we tend to think,” Dayan said. “We’re the only so-called civilized country that allows capital punishment, that allows indefinite confinement in special management units, that allows stun guns and attacks by dogs. Why is this?”
Dayan traces the concepts on which the Rehnquist Court and Gonzales relied back to legal concepts in the Caribbean that were adopted by the United States as it strained to accommodate slavery.
The key, then and now, is characterizing a class of people as less-than-human, Dayan said.
“You have prisoners and so-called illegal enemy combatants and they are now to be excluded from human empathy,” Dayan said. “There is predictability to it. You have certain kinds of language that can be called on again and again whenever there is a need to contain and incapacitate large groups of people who seem to be a threat. We saw this with the internment of Japanese Americans during World War II.”
There was an era when the Supreme Court was more protective of the Eighth Amendment, from the 1960s until the early 1980s during the prisoner’s rights movement, Dayan said.
It’s possible that abuses that have come to light at Abu Ghraib in Iraq and Guantanamo Bay are sparking enough protest to start reversing course. But it can only happen if the public begins to care more about people labeled as criminals and terrorists.
“Once you start attaching a status of ‘evil’ to certain groups of people who seem not to fit in, who are racially and religiously suspect, the public-at-large loses interest,” said Dayan, who noted that the 13th Amendment lists prisoners who have been “duly convicted” as the only group not exempted from slavery or indentured servitude. That group wouldn’t include enemy combatants who haven’t been convicted of anything, who have no access to judge or jury, and with the passage of the Military Commissions Act, no right to habeas corpus.
“It’s as if we’re watching the process of creating a status of persons who are not human.”
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