Cruelty might become an instrument of tyranny; of zeal for a purpose, either honest or sinister.
-- Weems v. U.S. (1910)
As noted earlier, this ruling arose from punishment policies in the Philippines, the harsh Spanish style penalty at issue deemed a violation of territorial Bill of Rights, language patterning our Eighth Amendment. [Holmes joined the dissent.] It was a seminal opinion, supplying not only an interpretation that applied the latter, but doing so in a liberal open-ended fashion. This served as a basis for later applications, setting the broad themes with widespread effects. Cf. An article in today's NYT about the life of someone after serving twenty years in prison for a crime he did not commit, the fear of something similar happening leading to care in the many more cases where wrongful conviction is not likely.
About a decade earlier, after that "splendid little" Spanish American War, the U.S. had a very messy (20K local troops dead, 200K civilians, according to the World Almanac, but the right wing bloggers ridiculed the count), counterinsurgency campaign to deal with for a few years. And, there was plenty of war crimes, including water torture. To note how it was seen at the time, including by U.S. officials. See, "Drop by Drop: Forgetting The History of Water Torture In U.S. Courts" by Evan Wallach. The recent comments, and Snowjob's (given it's his job) attempt to get past them, by Cheney that "dunking" is obviously acceptable in various cases led to an extended discussion (with a cite of the article) here. Or, as it was discussed during Japanese War Crime tribunals after WWII:
Well, I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I'd get my breath, then they'd start over again.*
Meanwhile, flipping thru the channels during the commercials, I see Prof. Yoo is out there again. Matching him as the counterpoint to middle of the road sorts like Prof. Rosen (when someone like him who is concerned about "judicial activism" [one of those liberal Roe opponents] though having some privacy bona fides, is upset, you know you are in trouble) really gives the guy's ideas too much respect. Obviously, the guy should not be taken seriously any more, but obviously he still has some cred when he keeps on popping up all over the place -- C-SPAN, editorials in major newspapers, congressional hearings, and so forth.
The fact this sort of thing still has a modicum of legitimacy suggests why the election (Election?) seems so important and clear-cut. There is a piece in the NYT today about how talking politics in some places is really in bad faith these days. Yeah, I know the drill. The thing is that these days things do seem patently black and white. We know there is an other side, getting smaller by the minute, but "our" side really cannot understand how there can be much doubt. Sure, there are levels of wrongness, but that is just detail. It started in late 2000 -- I got into shouting matches then too. But, at some point, you see there is no point. Ain't doing any good.
Not ready to make nice guys and gals. If you want to defend these people, do your best, but good f-ing luck.
---
* The article (rough draft) also notes it was deemed criminal when a renegade sheriff used the technique in the 1980s. "Dunking" is really not what is at stake here, though it might enter into the mix as well as in the discussions:
See, e.g., David Johnston and James Risen, Aides Say Memo Backed Coercion Already 5 in Use, New York Times, 27 June, 2004, page 1, ("Mr. Mohammed was 'waterboarded' - strapped to a board and immersed in water - a technique used to make the subject believe that he might be drowned, officials said,"); and Douglas Jehl and David Johnston, C.I.A. Expands Its Inquiry Into Interrogation Tactics, 29 August, 2004, page 10, ("Former intelligence officials say that lawyers from the C.I.A. and the Justice Department have been involved in extensive discussions in recent months to review the legal basis for some extreme tactics used at those secret centers, including 'waterboarding,' in which a detainee is strapped down, dunked under water and made to believe that he might be drowned."
"Yoo" might be okay with this, but "we" should not.