Understanding Torture: Law, Violence, and Political Identity

Afterword

Afterword In January 2009, President Obama issued a series of executive orders on detention and interrogation policy. Among other things, the orders revoked Bush’s 2007 post–Military Commissions Act order on CIA interrogation and declared that all interrogations of people in U.S. custody would comply with the Army ‹eld manual and Common Article 3 of the Geneva Conventions . In addition to reaf‹rming Obama’s campaign promise to close the detention camp at Guantánamo Bay, the new administration also advanced a narrower view than the Bush administration of executive authority to detain illegal combatants. Finally, the administration began to review interrogation and detention policy, with the apparent goal of recalibrating the mix of war and crime approaches to terrorism and national security issues. Nonetheless, the ‹rst six months of the Obama administration underscore the themes I have developed in this book, such that the administration ’s speci‹c policy toward something called “torture” appears to matter much less than the pervasive structures of legal liberalism. In his inaugural address, for example, Obama asserted that the United States was involved in a war against terrorism. The fact that a number of his early decisions coincide with the previous administration’s policies tends to bear out this assertion . Thus, even as of‹cials continue to force-feed prisoners on hunger strikes, the Obama administration determined that conditions at the Guant ánamo detention camp comply with international law. Rendition, in some form, remains a counterterrorism tool, and the administration has yet to reject the idea of inde‹nitely detaining suspected terrorists. Rather than seek a repeal of the Military Commissions Act, the Obama administration has endorsed the use of such commissions, although with some reforms and against a smaller pool of people. In litigation, the administration has endorsed the state secrets doctrine and opposed habeas corpus petitions brought by detainees. In signing statements Obama has suggested that his executive authority over foreign relations overrides certain provisions of federal law. With respect to coercive interrogation, and despite the executive orders, the Obama administration has shown a clear preference for shifting debate to other issues. As I write in July 2009, a 2004 report by the CIA’s inspector general remains classi‹ed (although it is expected to appear soon), and the 217 Department of Justice has yet to release a 2008 report by its Of‹ce of Professional Responsibility that is known to be highly critical of attorneys in the Of‹ce of Legal Counsel. Further, when he released several previously secret OLC memoranda on interrogation, Obama declared that of‹cials who conducted interrogations while relying on those memoranda should not be punished. Any criminal inquiry by the Justice Department into interrogation abuses seems likely to be limited to whether of‹cials went beyond the scope of the OLC memos. In the meantime, the Army ‹eld manual governs current interrogations, and it permits a signi‹cant amount of mental and emotional pressure—as well as the potential for physical discomfort during “isolation”—to be imposed on a suspect. For the Obama administration, detention and interrogation abuses appear less pressing than other topics. The administration certainly faces many important issues and it must prioritize them. Yet its policies suggest that issues involving human or constitutional rights have no special status. The administration’s actions thus accord with my argument that rights are simply one of many policy issues and tools for contemporary practitioners of governance in a liberal democracy. Of‹cials must make statements about rights, pay some attention to them, and avoid too many public violations of them. But they take these actions less to protect or respect rights as such and more because of the larger role rights play in de‹ning a liberal democracy and the rule of law. Returning to the speci‹c question of interrogation, the administration’s decision to release the OLC memoranda, while also assuring of‹cials who conducted coercive interrogations that they will not be prosecuted unless they went too far beyond the memos, has had some curious effects. Some administration of‹cials and media commentators have expressed concern that prosecuting interrogators or their superiors would criminalize a policy disagreement with the Bush administration. But such a concern rests on the belief that the debate over coercive interrogation is primarily a matter of policy or, to the extent it is an issue of law, that it is simply a matter of legal interpretation without criminal overtones. Yet concluding that the use, or not, of...