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June 14, 2004

Tortured Logic

People with a great deal more patience than I have with the tangle of legal concepts being twisted in the memos regarding torture and culpability seem to have concluded that there's much to be concerned about. Why is it that I can't seem to give a gnat's 'nads? Am I really so insensitive?

Not really. I found, while lurking through my journal, a full sense of outrage and despair over a question of torture. The victim in question was Amadou Diallo. I found it utterly dispicable that American police officers would even attempt, much less get away with such acts as sodomy with a broom handle. The memory of the event is rather blurred with that of the other New Yorker who got shot 34 times. His name escapes me at the moment, but it was clear that my prior sense of respect and admiration for Rudy Guiliani as a law and order type guy was completely destroyed by those events. Further, the departure of Chief Bratton sealed the lid on Giuliani's political tomb which was hardly loosened by his subsequent demeanor in the wake of nine-eleven.

Death with dignity is the reason we can make war. Indeed it is the reason war can be honorable. A man shot in battle whose body is turned over to his own army is what allows us to respect our enemy, and respect for the enemy is the only thing that makes an honorable peace possible. But a man whose body is desecrated is always an invitation to slaughter. No matter what one makes of the particular definitions the Geneva Conventions have established, lines must be drawn. And yet there are always huns among us. We share this planet with people whose suffering would make them particularly brutal warriors. Indeed I am inclined to believe that matters of imprisonment, interrogation, arrest and yes even torture are much more subjective than those of life and death.

It is this subjectivity I refer to when I read the following over at DeLong's. According to some standard, the following five acts are considered 'inhuman and degrading treatment'

a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

e) deprivation of food and drink.. subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

And then there is the American standards of 'cruel and unusual punishment'. Supreme Court Justices Thomas, Renquist and Scalia several years ago notably tried to push the envelope of immunity for prison guards. In the case of Hope v Pelzer we note the use of 'unnecessary and wanton inflictions of pain'.

In 1995, petitioner Hope, then an Alabama prison inmate, was twice handcuffed to a hitching post for disruptive conduct. During a 2-hour period in May, he was offered drinking water and a bathroom break every 15 minutes, and his responses were recorded on an activity log. He was handcuffed above shoulder height, and when he tried moving his arms to improve circulation, the handcuffs cut into his wrists, causing pain and discomfort. After an altercation with a guard at his chain gang’s worksite in June, Hope was subdued, handcuffed, placed in leg irons, and transported back to the prison, where he was ordered to take off his shirt, thus exposing himself to the sun, and spent seven hours on the hitching post. While there, he was given one or two water breaks but no bathroom breaks, and a guard taunted him about his thirst. Hope filed a 42 U.S. C. §1983 suit against three guards. Without deciding whether placing Hope on the hitching post as punishment violated the Eighth Amendment, the Magistrate Judge found that the guards were entitled to qualified immunity. The District Court entered summary judgment for respondents, and the Eleventh Circuit affirmed. The latter court answered the constitutional question, finding that the hitching post’s use for punitive purposes violated the Eighth Amendment. In finding the guards nevertheless entitled to qualified immunity, it concluded that Hope could not show, as required by Circuit precedent, that the federal law by which the guards’ conduct should be evaluated was established by cases that were “materially similar” to the facts in his own case.

Is torture like pornography? Do you only know it when you see it? I say yes, that torture, what is 'inhuman', what is 'wanton infliction of pain' are all subjective. Yet we must have laws to help guide us in this no matter how strong our stomachs may be. But following the letter of those laws may not help. Once we have gone beyond our enemy's ability to stomach pain, or even that of our political allies, we have crossed a threshold over which positive sentiment is unlikely to return. All we can do is hold by our standards. The enemy knows what to expect.

I think that the Administration has every right to push the envelope as regards immunity. To the extent that we are sovereign and we have to fight dirty the President ought to have the leeway to do so. Absolutely. But the inevitable consequence of crossing over that grey area is rooted in the implication of reserving the right. That is that you cease to respect your enemy, and that is the thing that obliterates the possibility of an honorable peace.

This is very likely America's intent in the WOT. There seems to be no question that this Administration wants to give no quarter to terrorists. Our aim is not an honorable peace with them, but their total destruction. I think also that American are fairly united in that sentiment. I believe GWBush's term 'bringing them to justice' is something of a euphemism. 'Capture or Kill' is more the sentiment, and my reading of 'capture' absolutely means interrogation to find the rest of the AQ gang.

So while a great deal of noise is made about what has transpired at Abu Ghraib, and while it is still important to have guidelines in a fuzzy world, I don't believe at bottom we really care what happens to actual terrorists. Our understanding that we want no honorable peace with al Qaeda should help explain the purpose of this legal judo.

Posted by mbowen at June 14, 2004 10:43 PM

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Cobb- Abner Louima was the guy who got sodomized by the NYPD. Amadou Diallo got shot 41? times.

Posted by: Avery at June 16, 2004 12:45 PM

Yeah, 41.

Posted by: Bill Benzon at June 16, 2004 07:22 PM