In lieu of an abstract, here is a brief excerpt of the content:

NOTES Introduction 1. See J. Waldron, “Torture and Positive Law: Jurisprudence for the White House,” 105 Colum. L. Rev. 1681 (2005). 2. Political theorists will see in the question a reference to Carl Schmitt’s theory of the state of exception. Certainly elements of his idea of “the political” appear in the analysis I pursue. But where Schmitt focuses on the decisionmaker —he who decides on the state of exception—I focus ‹rst on the character of the political imagination that makes possible the exception and second on sacri‹ce as the archetype of political behavior that is beyond law. 3. See C. Kutz, “The Lawyers Know Sin: Complicity in Torture,” in The Torture Debate in America 241 (K. Greenberg, ed. 2006). (“One of . . . the victories for the Enlightened rule of law—a campaign fought by Voltaire and Beccaria— has been the erasure of torture from the menu of governmental policy choices.”) 4. See M. Foucault, Discipline and Punish: The Birth of the Prison (A. Sheridan, trans. 1977). 5. See J. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (1977). 6. See, for example, N. Lewis, “Broad Use of Harsh Tactics Is Described at Cuba Base,” New York Times, Oct. 17, 2004; and N. Lewis, “Red Cross Finds Detainee Abuse in Guantánamo,” New York Times, Nov. 30, 2004 (discussing a report stating that interrogation techniques amounted to an “intentional system of cruel, unusual and degrading treatment and a form of torture”). But see D. Priest & J. Stephens, “Pentagon Approved Tougher Interrogations,” Washington Post, May 9, 2004, A1 (describing approval of acts that have been ruled uncon179 stitutional within the United States but might not rise to the level of torture in international law). (“In April 2003, the Defense Department approved interrogation techniques . . . that permit reversing the normal sleep patterns of detainees and exposing them to heat, cold and ‘sensory assault,’ including loud music and bright lights.”) 7. On Christian fundamentalists’ relationship with the military, see C. Hedges, American Fascists: The Christian Right and the War on America (2006); and D. Segal & M. Segal, “America’s Military Population,” Population Bulletin, December 2004, at 25 (indicating that 68 percent of America’s military personnel designate themselves as Christians). 8. See J. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe 22–23 (2003) (on the “intoxication” of punishing ); and D. Luban, “Liberalism, Torture, and the Ticking Bomb,” 91 Va. L. Rev. 1425 (2005) (on the culture of torture). 9. See S. Cohen, States of Denial: Knowing about Atrocities and Suffering (2001). 10. They may, for example, be “private contractors” acting under unclear lines of authority. See J. Brinkley, “9/11 Set Army Contractor on Path to Abu Ghraib,” New York Times, May 19, 2004, available at http://www.nytimes.com/ 2004/05/19/national/19CONT.html; and P. Chatterjee & A. Thompson, “Private Contractors and Torture at Abu Ghraib,” CorpWatch, May 7, 2004, http://www.corpwatch.org/article.php?id=11285 (discussing a report by U.S. Army major general Antonio Taguba on the abuse of Iraqi prisoners). See also L. Dickinson, “Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability under International Law,” 47 Wm. & Mary L. Rev. 135 (2005–6). 11. See L. Fuller, The Morality of Law 33–39 (1964). 12. 18 U.S.C. §§ 2340–2340B. 13. See P. Aussaresses, Special Services: Algeria, 1955–1957 (2001); B. James, “General’s Confession of Torture Stuns France,” International Herald Tribune, May 5, 2001, available at http://www.iht.com/articles/2001/05/05/france_ ed3_.php; and J. Malamud-Goti, Game without End: State Terror and the Politics of Justice (1996). 14. The recent scandal over the care of veterans at Walter Reed Army Medical Center is an indication of the direction of future controversies. 15. This idea is central to Luban’s recent critique (see Luban, supra note 8). The most powerful recent work connecting the liberal morality of the equal dignity of every individual to the rule of law is that of Ronald Dworkin, who sees this principle of dignity as the foundation of the legal order. See, for example, R. Dworkin, A Matter of Principle (1985). 16. Characteristic of this position of the hardheaded liberal is A. Dershowitz , Why Terrorism Works: Understanding the Threat, Responding to the Challenge (2002). 17. The U.S. Supreme Court has held that Americans are bound by Common Article 3 of the Geneva Conventions in dealing with the trial of detainees from the...

Share