Cruel and Unusual

The end of the Eighth Amendment

Joan Dayan

8 Describing the standard interrogation techniques for Iraqis detained at Abu Ghraib, Mr. Womack, the lawyer for Specialist Charles A. Graner, said “a certain amount of violence was to be expected,” adding, “Striking doesn’t mean a lot. . . . Breaking a rib or bone—that would be excessive.” Mr. Volzer, the lawyer for Specialist Megan M. Ambuhl, juggled his terms, arguing that it was intimidation, not torture: “I wouldn’t term it abuse.” Mr. Bergrin, the lawyer for Sergeant Javal S. Davis, argued that the prisoner was not harmed when Davis stomped on his fingers. “He may have stepped on the hands, but there was no stomping, no broken bones.”

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.

It might seem at first that the rules for the treatment of Iraqi prisoners were founded on standards of political legitimacy suited to war or emergencies; based on what Carl Schmitt called the urgency of the “exception,” they were meant to remain secret as necessary “war measures” and to be exempt from traditional legal ideals and the courts associated with them. But the ominous discretionary powers used to justify this conduct are entirely familiar to those who follow the everyday treatment of prisoners in the United States—not only their treatment by prison guards but their treatment by the courts in sentencing, corrections, and prisoners’ rights. The torture memoranda, as unprecedented as they appear in presenting “legal doctrines . . . that could render specific conduct, otherwise criminal, not unlawful,” refer to U.S. prison cases in the last 30 years that have turned on the legal meaning of the Eighth Amendment’s language prohibiting “cruel and unusual punishment.” . . .

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Joan Dayan teaches at Vanderbilt University and is completing a book on slavery, incarceration, and the law of persons.

Originally published in the October/November 2004 issue of Boston Review.