[Marxism] Dismantling the 8th Amendment as well

[Brian Shannon <Brian_Shannon@xxxxxxxxxxx>]

Joan Dayan's wide ranging essay reviews the U.S. practice of torture at 
present and in the past. It discusses "cruel and unusual" as 
interpreted under slavery, as punishment, and as used against 
prisoners. Her scholarship ranges through both federal and state law 
and reaches out to discuss the present U.S. program in Haiti.

"After the revelation of abuses at Abu Ghraib, Secretary of Defense 
Donald Rumsfeld found time to draw comparably subtle distinctions: 'I’m 
not a lawyer, but I know it’s not torture—probably abuse.' Rumsfeld’s 
own blurring of the distinction between obvious torture and possible 
abuse has a real legal history. The now-famous documents written by 
lawyers for the White House and the Departments of Defense and 
Justice—an August 1, 2002, memorandum prepared by Judge Jay S. Bybee 
and a March 6, 2003, memorandum entitled 'Working Group Report on 
Detainee Interrogations in the Global War on Terrorism' (authorized by 
the Pentagon’s general counsel, William J. Haynes II)—redefined the 
meaning of torture and extended the limits of permissible pain."
__________

She brings a special focus to the use of language and how by 
categorizing and distinguishing one group from another, the enablers of 
torture circumvent and rationalize the clear meaning of rules against 
torture and "cruel and unusual" punishment. Invidious distinctions are 
used or created to justify punishment. Slaves, prisoners, 
administrative actions, etc.:

"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."
. . .
"In my work on the Arizona prison system and the courts’ 
rationalization of custody and control, . . .  I demonstrate how the 
legal manipulation of terms, by both lawyers and wardens, can evade an 
obvious Eighth Amendment violation. For example, if you can claim that 
classification is not punitive, not disciplinary, but merely 
administrative, then something called “administrative segregation”—even 
if it means indefinite isolation in solitary—is not subject to judicial 
review. By engaging language in legality within the courts and inside 
the prisons, the function of labeling the criminal “type”—the 
manipulation of “status”—has kept correctional actions and legal 
opinions in dialogue"

http://www.bostonreview.net/BR29.5/dayan.html

Joan Dayan is Professor of English and Robert Penn Warren Professor in 
the Humanities at Vanderbilt University and is completing a book on 
slavery, incarceration, and the law of persons.

 

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