What We Don't Know Won't Hurt Us, But It Still Hurts

Torture exists. America tortures.

Americans don't want to know, because "what we don't know won't hurt us." The fact of the matter is that it still hurts...maybe not us directly.

If we don't look or attempt to "know", it will hurt America's ill-fated reputation internationally and Americans alike by association.

The revelations of prisoner abuse and torture at Abu Ghraib and more recently at Guantánamo were shocking to most Americans. And those who condemned the treatment of prisoners abroad have focused on U.S. military procedures and abuses of executive powers in the war on terror, or, more specifically, on the now-famous White House legal counsel memos on the acceptable limits of torture.

Vanderbilt's own Colin Dayan argues in her new book The Story of Cruel and Unusual that anyone who has followed U.S. Supreme Court decisions regarding the Eighth Amendment prohibition of "cruel and unusual" punishment would recognize the prisoners' treatment at Abu Ghraib and Guantánamo as a natural extension of the language of our courts and practices in U.S. prisons. In fact, it was no coincidence that White House +legal counsel referred to a series of Supreme Court decisions in the 1980s and 1990s in making its case for torture.

The Eighth Amendment outlaws cruel and unusual punishment, but, as Dayan explains, a series of Supreme Court rulings has increasingly narrowed the definition of “cruel and unusual.” According to these precedents, a prisoner is protected only from an actual sentence designed to cause excessive pain, or from wanton, deliberate cruelty—from an act, that is, designed specifically to cause pain, and with the infliction of pain as its primary purpose. Any other kind of mistreatment, even if it is clearly cruel, is permitted as long as it is deemed necessary for security, confinement or the enactment of a legal punishment. It’s OK, therefore, to shackle women inmates during childbirth, subject a condemned prisoner to multiple execution attempts, or psychologically cripple offenders through perpetual solitary confinement—all practices currently permitted in the U.S. penal system.

Dayan argues that these precedents—particularly the Supreme Court’s insistence on harmful intent as a measure of culpability—created the framework for the infamous “torture memos” of 2002, in which the Bush administration sought to define the limits for lawful abuse of terror detainees. In effect, says Dayan, the memos declare that an interrogator cannot be held responsible “if he had a ‘good faith belief’ that whatever he did would not result in mutilation or death. The results—a mutilated, blind, or dead body—get defined away by the vain search for intent.” In other words, almost anything short of overt sadism or premeditated murder would not meet the legal standard for abuse. Such reasoning may be repulsive by any sensible ethical standard, but according to Dayan it is firmly grounded in American law.

I just thought you should know.