Tuesday, November 09, 2004

The Eighth Amendment, "Double-Think" and Nostalgia for the Middle Ages

An excellent and comprehensive article on torture by Joan Dayan in the Boston Review (via BoingBoing):

In Furman v. Georgia, Justice Brennan argued that there could be cruelty far worse than bodily pain or mutilation. It was not just “the presence of pain” that proved the significance of the Eighth Amendment but the treatment of “members of the human race as nonhumans, as objects to be toyed with and discarded.” The ominous leeway of American legal rules—from slave codes, to prison cases, to the Bush administration’s torture memos—redefines these persons in law. That redefinition—the creation of a new class of condemned—sustains a metaphysics that goes beyond the mere logic of punishment. Once you create the category of the stigmatized, whether they are called “terrorists,” “security threat groups” (gangs in our prisons), or “security detainees” (prisoners in Iraq), the use of torture can be calibrated to the necessities of continuously evolving and aggressive security measures.

[...] When does an emotional scar become visible? To make it visible is to stigmatize, yet only certain kinds of stigmatization are recognized: those that accord with the substandard of what prisoners are assumed to be. They are all bodies. Only some are granted minds. And who is to decide? The unspoken assumption remains: prisoners are not persons. Or, at best, they are a different kind of human: so dehumanized that the Eighth Amendment no longer applies. The naked pyramid of flesh in Abu Ghraib, the kneeling and shackled bodies, blindfolded by blacked-out goggles and hooded in Guantànamo, sanction degradation. Such inhuman treatment, however, is made lawful when our government refuses to recognize that “cruel, inhuman, and degrading” treatment has a precise meaning, when our current courts continue to ignore obvious violations of human dignity and worth. In a penal system that has become instrumental in managing the dispossessed, the unfit, and the dishonored, such phrases as “minimal civilized measure of life’s necessities” or “the “basic necessities of human life” prompt us to reconsider the meaning of “human.”

In case you are curious, here is the Eighth Amendment to the U.S. Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

More from the Dayan article:

While Brennan and Marshall sought to make the Eighth Amendment a prohibition against degrading and inhuman punishment, Chief Justice Burger’s dissent in Furman (joined by Blackmum, Powell, and Rehnquist) has set the tone for its recent interpretation. Burger explained that “of all our fundamental guarantees, the ban on ‘cruel and unusual punishments’ is one of the most difficult to translate into judicially manageable terms.” This unmanageability, what Burger described as “the haze that surrounds this constitutional command,” invites rhetorical slippage in defining the limits of torture, and, at its extreme, allows the complete evasion of actual harm done.

And from Orwell's Nineteen Eighty-Four, the definition of "double-think":

The power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them. ... To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then, when it becomes necessary again, to draw it back from oblivion for just so long as it is needed, to deny the existence of objective reality and all the while to take account of the reality which one denies—all this is indispensably necessary. Even in using the word doublethink it is necessary to exercise doublethink. For by using the word one admits that one is tampering with reality; by a fresh act of doublethink one erases this knowledge; and so on indefinitely, with the lie always one leap ahead of the truth.

Finally, from one of my favorite over-the-top radical authors, Mark Crispin Miller, an interview concerning his recent book, Cruel and Unusual: Bush/Cheney's New World Order:

I argue that Bush & Co. is the anti-Jefferson. This regime is not conservative, but represents a radical subversive movement -- one now largely in control of all three branches of the government, and also dominant throughout the press. What ultimately drives them is irrational. Sure, they're in it for the money and the oil; but that's not all that's going on here. They're neo-Calvinists, quite clearly working toward the imposition of theocracy on the United States, and then on the whole world. (Although mostly atheists and Jews, the Straussian types around Rumsfeld and Cheney are fine with that agenda, as they believe that theocratic government is best, because it makes the populace compliant.)

[...] And in fact we are now dealing with an adversary whose world-view is opposed to ours completely. They are nostalgic for the Middle Ages, or at least for the colonial theocracies of the 17th and early 18th centuries. They value faith over reason. So those who have dragged this nation into war against Islamist terror think exactly like Islamist terrorists. Whatever creeds they think they follow, what really drives both groups is paranoia. Each side wants to replace the other, either through annihilation or conversion. Certainly the Busheviks are fired up with old Crusaders' zeal

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