(Read On! ... occasional posts on writing we're reading) Much has been written about the post-9/11 memos in which American lawyers at the Departments of Justice and Defense deployed law-like arguments to justify coercive interrogation of persons seized in what those same lawyers call a Global War on Terror. (My 2¢ is here.) The memos, it is said, "tortured" law and logic.
Double-edged invocation of a term whose Latin root torquēre means "to twist," whether the object of the action be a body of law or that of a human being, merits careful consideration for scholars like Colin Dayan (right), Robert Penn Warren Professor in the Humanities at Vanderbilt. But the focus of her newest book are 2 other words essential to those memos: Dayan's "The Story of Cruel & Unusual" argues that centuries of U.S. Supreme Court torturing (if I may) of these latter adjectives laid a legal foundation upon which lawyers could, with relative ease, construct what are now known as the "Torture Papers." After establishing a disturbing link between slavery and the Constitution's 8th Amendment, she stresses a memo that relied on interpretations of "cruel and unusual punishments" to excuse abuse absent evidence of "deliberate indifference" and "wantonness." Given the constraints of prison litigation, complainants seldom can prove that level of intent, Dayan points out. As a result, inhumanity occurred with impunity in prisons in America, Dayan states, and, in recent years, in America's offshore prisons as well.
As Jeremy Waldron, who's also analyzed the memos, writes in the book's foreword, "Dayan comes perilously close to depriving us of ... meager crumbs of moral discomfort" in arguing that abuse at Abu Ghraib and Guantánamo was in no sense aberration but was, rather, "business as usual for Eighth Amendment jurisprudence."
[Aside: Dayan and Waldron both will provide critiques of international law scholarship at next month's ASIL/AALS conference in Vancouver. Details here.]