I won't be the first nor the last to recognize the absurdity of American society. I've had a good taste of it this weekend already. But perhaps I'll be the first to consider the implications of Jackass 2 on American geopolitics.
Jackass 2 is the funniest film I've seen all year, without question. In fact it is the funniest film I've seen in several years. If I told you the other film that I'm thinking about from 2003 you'd probably dismiss me as a lowbrow crank. I might be, but I'll hold that judgement in abeyance by keeping mum. Still I cannot watch a film like this without considering exactly how flexible the definition of torture must be. But let's forget about the popular definition of torture, lets look specifically at the extensions the President demanded. Essentially, if I read Balkin correct, it's the difference between suffering and damage.
The bill would define ˜serious mental pain or suffering" to be basically coterminous with the term ˜severe mental pain or suffering" under the torture act, except that as to conduct occurring after this law is enacted, the definition would cover conduct not only intended to result in "prolonged mental harm" (as is the case under the torture statute), but also conduct intended to result in "serious and non-transitory mental harm (which need not be prolonged)." What does it mean for "serious" mental harm to be non-transitory but also non-prolonged? The bill does not say. Between transitory and prolonged falls . . . the shadow.
More important is the bill's definition of ˜serious physical pain or suffering." One would think that, on any reasonable understanding of ordinary language, the "alternative" CIA techniques do, indeed, result in serious physical suffering, at the very least. Indeed, such serious suffering -- and the prospect of ending such suffering by telling one's interrogators what they wish to hear -- is the whole point of using such techniques in the first place. But remarkably -- and not accidently -- the bill's definition would not cover all such actual "serious physical suffering."
The definition would require, for one thing, a "bodily injury" -- something that would not necessarily result from use of the CIA techniques -- even though one can of course be subject to great physical suffering without any "physical injury."
What's worse, such physical injury would also have to "involve" at least one of the following:
(1) a substantial risk of death;
(2) extreme physical pain;
(3) a burn or physical disfigurement of a serious nature, not to include cuts, abrasions, or bruises; or
(4) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
As you can see, this definition simply does not cover many categories of actual serious physcial suffering, including, naturally, the physical suffering that ordinarily results from the CIA techniques that have been reported.
So now that you've got a snootful of legalese, you need to go see what the stuntmen of Jackass do in their movie, on film, for laughs. And you have to understand that it is very likely, although it would take some sort of lawyer and expert to say whether or not these things would be considered torture under the pre-Bush interpretation of Article 3. Somebody in the legal profession please do us all a favor so we can recognize, we being the American masses with appetites for fast cars, alcohol and violent movies.
This is the number one movie in America, and it is puke up your guts funny. I literally had a very difficult time and had to close my eyes during several scenes (when people on screen were puking) so that I wouldn't puke myself. It was a combination of hilarity and revulsion which was the virtual equivalent of waterboarding milk through your nose; most definitely a unique combination of emotions.
The premise of Jackass is fairly simple. Several overgrown adolescent pranksters come up with ideas for outrageous stunts and pranks. They connive each other into performing these pointless and painful stunts for the pure gag of it. But they also decieve each other into compromising humiliations. The final stunt of the film is probably one that should go down in history as the most politically resonant satire of a generation, and it definitely would be considered torture in the pre-Bush world. Nevertheless, I laughed. There are sometimes pranks within stunts which subject the performer to greater humiliation than they ever expect. An example.
Bam, a rather famous skateboarder, is a guest stuntee on the show. We are told that he is fearless with one exception, snakes. And so he signs up to perform 'The Wind Tunnel' in which he dresses in a tuxedo and holds on with both hands inside a horse trailer as the propeller from a swamp buggy is spun at full blast. As expected he holds on for a time and then is finally blown about twenty feet into the trailer. As he is about to take his bow, a gate within the trailer is closed and locked and a live cobra is tossed into the area where he is now imprisoned. Naturally he freaks out as the other pranksters taunt him. He slams his head into an iron bar as he frantically makes his escape and retreats mumbling as the camera follows him. "I don't trust anyone any more". He winds up on the top of another trailer trying to regain composure with a beer still cursing his tormentors who then sneak up behind him and expertly throw a rubber hose around his neck. Bam takes this to be another snake and loses his beer. There's no way that writing this can express the humor in it which is hard to imagine, but easy to see on film.
According to the experts at Slate magazine:
Name: Exploiting individual phobias, e.g. use of dogs
Source: DOD Working Group memo; Memorandum from Lt. Gen. Ricardo Sanchez authorizing interrogation practices for use in Iraq
Description: When "fear up" doesn't work, interrogators may actively stimulate a detainee's fears. Pentagon lawyers described this tactic as "increasing anxiety by use of aversions." Photos from Abu Ghraib show a detainee seated before a large, snarling military police dog (a full-grown German shepherd, for example). This technique may be followed by a threat to repeat the scare session or to let the dog off the leash so it could tear into the detainee's flesh. The tactic can also be conducted in public areas to scare other detainees.
Physical, Psychological, or Other Effects: Severe emotional distress; paranoia; physical manifestations of the fear such as high heart rate, increased blood pressure, and uncontrolled urination and defecation.
Locations Used: Iraq, Guantanamo Bay
Legal Opinion: Army intelligence doctrine does not directly speak to dog use because the dogs belong to military police units. Military police doctrine does not allow threatening use of dogs.
The Geneva Conventions' prohibitions on physical and mental coercion also prohibit the use of dogs in this manner.
The Army lawyer who proposed the use of dogs at Guantanamo concluded that it was permissible if done for an important governmental objective, without intent to cause harm or prolonged mental suffering. This analysis reflects the U.S. reservations to signing the CAT and the ICCPR. But the lawyer's conclusion may be wrong because the U.S. reservation to the CAT defines impermissible psychological torture as "the intentional infliction or threatened infliction of severe physical pain or suffering." Army Field Manual 34-52 categorizes food deprivation as a form of "physical torture."
Obviously, a cobra is more dangerous than a dog, and yet we laugh. We live in a society in which we accept actions that are tortuous and humiliating and extremely painful, for the sake of comedy. I've talke about this before with regard to the gruesome gauntlets of Fear Factor. And yet when it comes to our true needs, for security, we balk at the prospect of being percieved as brutal by other nations around the world. Yes, it is absurd.
My heart isn't faint, and I don't think I could make it so. I do know the difference between that which is done for entertainment purposes one off, and that which might go on indefinitely. I'd much rather be pranked by these guys than captured by some intelligence service. But Jackass does serve to remind us that there are plenty of people made of sterner stuff than the average Joe - that the word 'extreme' is relative, and that the human body is capable of enduring quite a lot of pain and suffering. I'm convinced that nobody, even at Abu Graihb, was branded during interrogation by US intelligence officers. But in this movie I saw a man branded.
Theere can be no doubt that watching Jackass and enjoying it deadens some sensibilities one might have. I've been one who has argued against the deadening tropes of extremism in TV. I tired of the fictions of HBOs Deadwood. I also think we should avoid the temptations of watching horrors. For example, I refused to watch, host or link to the video of the beheading of Dave Berg. I cannot imagine that I could stand watching the film of Steve Irwin's death by stingray either. And while much of Jackass is grotesque and shocking, almost none of it is horrifying. While I'm not going to try and establish some scale of human revulsion, there are certainly shades and levels.
I find it difficult to believe that any of the drafters of the Geneva Conventions could have stomached the extremeties of Jackass nor can most Americans. But there are some of us who can, and professionals who see much much worse. I have every belief that those professionals deserve our confidence in their aims to up the ante to the level of physical suffering without physical injury, which is, short of the branding, the kind of outrage that is de rigueur for the Jackass crew. I know that makes a lot of Americans puke, but I think that beats the alternative.
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