What can law students learn from a Harvard University literary critic about the moral legality of questionable detention practices in Abu Ghraib and Guantanamo? Quite a lot, if she's Elaine Scarry, an outspoken critic of legalizing the torture of prisoners and whose research is at the intersection of law, values and literature.
Talking on "Undoing Democracy: Military Honor and the Rule of Law," at Cornell Law School April 27, Scarry focused on the illegality of torture and the cost to society of defying the accepted rule of law. She is Harvard's Walter M. Cabot Professor of Aesthetics and the General Theory of Value and the author of "The Body in Pain," a National Book Critics Circle finalist in 1986, and "On Beauty and Being Just" (1999).
She began by quoting a 1998 article in a U.S. Air Force journal by then Air Force Col. Charles Dunlap warning about a new form of warfare employing unconventional weapons and procedures prohibited by the Geneva Conventions.
"Using the framework of chivalry, the article urged the U.S. to continue to be Sir Galahad, even when confronted by Genghis Khan," said Scarry -- that is, to take the moral high road and adhere to the rule of law.
But instead of defending the rule of law, "the U.S. has become neo-absolutist" in violating it, declared Scarry, as evidenced by President George W. Bush's statement that he has the authority to suspend Geneva Conventions rules on torture, and by the subsequent torture of prisoners in U.S. care at Iraq's Abu Ghraib prison and the deaths by torture of Iraq war prisoners at the U.S. naval base in Guantanamo Bay, Cuba.
Those incidents are not aberrations but a "stark line of influence [emanating] from Washington, D.C., as Abu Ghraib documents made clear," said Scarry.
What does suspending the rule of law look like? "It's the image of a frightened, naked man clutching his genitals to protect them from a lunging dog," she said. Permitting such "barbarism" as stripping prisoners and intimidating them with dogs -- which U.S. Secretary of Defense Donald Rumsfield approved for Guantanamo detainees -- led to the practice being exported, intentionally or unintentionally, to Abu Ghraib, Scarry claimed.
"Torture can never be defended on the grounds of military necessity," she said, rejecting arguments by her Harvard law professor colleague Alan Dershowitz that certain circumstances might make torture necessary. "The infamous medical experiments and the murders of Jews, gypsies and other so-called enemies of the state by the Nazis were argued to be of military necessity," she pointed out. But the laws governing warfare view necessity "not as a license to do dastardly deeds but a prohibition ruling out actions not necessary to military success."
Although "the harm from torture cannot be lessened if all the rules were followed," breaking them wantonly suggests a disregard for the rule of law that leads to a complete breakdown of moral values, suggested Scarry. "Can a country that breaks international rules and the rules of its own military fly our flag without flying it falsely?" she asked.
Scarry's talk was the 2006 Robert S. Stevens Lecture. She was introduced by Bernadette Meyler, assistant professor of law at Cornell Law School. The annual lecture series, which honors a former Law School dean, features speakers whose legal expertise expands students' knowledge beyond substantive and procedural law.