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Academic

: Less than the Least

Torture--Stuntz

By David Skeel and Bill Stuntz

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I have several reactions to the torture memos and the frenzy that has erupted since their publication. On the one hand, some of the behavior at issue—like pushing a prisoner against a wall designed to yield to pressure—seem far too mild to deserve the label 'torture.' Using that word to describe such tactics cheapens the concept. On the other hand, two of the tactics described in Jay Bybee's memo—waterboarding and extended sleep deprivation—seem to me qualitatively different. Those tactics strike me as transparently evil, the sort of thing civilized societies should not tolerate in others and should never do themselves. When governments practice such evil, they should be called to account. That is the great benefit of the rule of law: rulers are held to the same standards as those they rule. On yet another hand (I'm hearing the music for 'Fiddler on the Roof' as I type this), there is something grossly unfair about punishing people who were striving to do right in extraordinarily difficult circumstances. Mercy is a virtue not much seen in America's legal system these days. This setting seems to me a good place to begin practicing that virtue.

But my dominant reaction does not run along those lines; its origin is neither legal nor political. For the past nine years, my back and right leg have hurt. For the past five years, the pain has been both constant and, usually, severe. Every day, I have periods when I hurt in a measure that, not so long ago, would have left me screaming. Sometimes, pain of that sort and worse must be inflicted on others. Soldiers shoot enemy fighters; doctors set broken bones, sometimes without adequate anesthetics on hand. But the idea of inflicting such pain not out of necessity but by choice horrifies me.

Why, exactly? The question is harder to answer than you'd think. One thing I've learned the past few years is that pain conscripts the mind. My wits are no longer mine; cancer and sciatica rule mental territory once put to other, better uses. In my case, that is no one's fault: pain and disease are arbitrary villains; they strike without reason or cause. The notion of producing such effects deliberately—not because one must but because one can—seems monstrous. I still would decline to prosecute all those involved in this ugly business. But I want the ugliness acknowledged and condemned. And I certainly don't want my government doing such things, ostensibly for my benefit.

Full post as published by Less than the Least on April 25, 2009 (boomark / email).