Cruel and Unusual - The End Of The Eighth Amendment
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.'' What is the history of this phrase? How has it been interpreted? And how has its content been so eviscerated?
posted by y2karl on Nov 8, 2004 - 25 comments

The Road To Abu Ghraib A generation from now, historians may look back to April 28, 2004, as the day the United States lost the war in Iraq... It was a direct—and predictable—consequence of a policy, hatched at the highest levels of the administration, by senior White House officials and lawyers, in the weeks and months after 9/11. Yet the administration has largely managed to escape responsibility for those decisions; a month from election day, almost no one in the press or the political class is talking about what is, without question, the worst scandal to emerge from President Bush's nearly four years in office... Given the particular conditions faced by the president and his deputies after 9/11—a war against terrorists, in which the need to extract intelligence via interrogations was intensely pressing, but the limits placed by international law on interrogation techniques were very constricting—did those leaders have better alternatives than the one they chose? The answer is that they did. And we will be living with the consequences of the choices they made for years to come.
posted by y2karl on Oct 27, 2004 - 33 comments