Understanding Torture: Law, Violence, and Political Identity

Conclusion: Living with Torture

conclusion  Living with Torture De‹ning Torture  The Convention against Torture characterizes torture as an exceptional act. By emphasizing, ‹rst, the amount of pain (“severe pain or suffering, whether physical or mental”) and, second, the motivation behind the in›iction of pain (“obtaining . . . information or a confession,” punishment,“intimidating or coercing,” or discrimination), it implies that torture is different from other, less-regulated conduct, such as “other cruel, inhuman or degrading treatment or punishment.”1 Nonetheless, this legal de‹nition is a compromise hammered out in negotiations among parties of diverging interests , and like other de‹nitions of torture, it does not exhaust the questions of what torture is and how it operates. In concluding this book, I explore this issue not to develop a better or more speci‹c de‹nition but, rather, to suggest a broader understanding of torture’s role in contemporary legal and political life. As the convention recognizes, torture is not simply a method of interrogation or a form of punishment. Building on the convention’s additional purposes of intimidation and discrimination, the impulse to torture may derive from the identi‹cation of the torture victim with a larger threat to social or political order.2 More generally, gathering information or in›icting punishment are often the stated motives for torture, but they may not be its sole purpose. Rather, in Robert Cover’s words, torture functions, in many cases, “to demonstrate the end of the normative world of the victim —the end of what the victim values, the end of the bonds that constitute the community in which the values are grounded.” Cover continues, “The torturer and the victim do end up creating their own terrible ‘world,’ but this world derives its meaning from being imposed upon the ashes of another . The logic of that world is complete domination, though the objective may never be realized.”3 This domination plays out in several ways. Intense pain, in itself, shapes and sometimes destroys human perception and personality. Even more, tor204 ture inverts typical conceptions about law and legal process by using punishment to gather evidence to justify punishment already in›icted.4 When torture is legal in the sense of being an of‹cial policy, the victims’ suffering and pain become irrelevant to the law—or, perhaps, relevant in a more encompassing way—precisely at their moment of greatest vulnerability.5 Torture is also “world-destroying” in its ability to subvert and degrade the ideas of agency, consent, and responsibility that shape liberal ideas of self and self-government. Once torture begins, the result is always the product of the victim’s“choice.”Victims who provide information have“chosen” to talk. Yet these words ascribe agency and responsibility to a victim whose ordinary subjectivity is compromised or broken.6 If a victim resists, he or she will be tortured again—but again, the victim is responsible. According to the logic of torture, if the victim would only surrender to the torturer’s domination, the pain would be over. By refusing to talk, the victim “consents ” to more torture.7 The logic of choice, consent, and responsibility suggests an aspect of torture not explicit in legal de‹nitions but clear in many accounts of torture as practice: escalation, such that the victim’s resistance leads to more and greater pain. Importantly, however, escalation is not just about greater pain over time but also about beginning with a relatively milder amount of pain or coercion and with the possibility, even the expectation, of more. Torture encompasses this continuum; it can include not just the most intensely painful practices but also all the practices that use pain to punish or gather information, damage the victim’s identity or worldview, or express the domination of the state and the torturer. Escalation thus becomes another way of describing the relationship between the power of the torturer and the victim’s complex mix of agency and powerlessness. Both the torturer’s ability to escalate the level of pain in response to the victim’s reactions or choices and the victim’s awareness of that ability are important components of torture’s potential for domination and identity destruction.8 The idea of escalation thus suggests a legal conclusion: victims who “break” at the beginning of coercive or inhuman treatment have been tortured if they reasonably believe that progressively more painful treatment will follow. International law tries to establish that the purposeful in›iction of severe pain, whether or not accompanied by the...