Sacred Violence: Torture, Terror, and Sovereignty

Introduction: The Puzzle of Torture

INTRODUCTION: THE PUZZLE OF TORTURE if we are quite willing to kill, why not torture? In the midst of a “war on terror,” we ‹nd ourselves engaged with this question again. Much seems to be at stake in the debate: legally, historically, and morally. The elimination of torture from penal and investigatory practices was a central element in the development of modern law. The American Constitution prohibited “cruel and unusual punishment”; the French Declaration of the Rights of Man prohibited “all harshness not essential to the securing of the prisoner’s person.” Two hundred years later, the prohibition on torture is at the center of modern international law, both human rights law and humanitarian law. The prohibition on torture appeared immediately after World War II in the Universal Declaration of Human Rights and then in Common Article 3 of the 1949 Geneva Conventions; it reappeared in the International Covenant on Civil and Political Rights in 1976; and ‹nally it was entrenched in the separate Convention against Torture that came into force in 1987. In both the earlier moment of constitutionalism and the later moment of internationalism, the prohibition on torture symbolized the idea of a government of law.1 Political power without law is the practice of tyranny, and out of this comes torture. That, at least, is the fear. Is our present debate, then, about the limits of our commitment to this ideal of the rule of law in both its constitutional and international forms? The contemporary arguments over torture open up the most dif‹cult questions about the nature of political life. Are the borders of law adequate to the necessities of the political community? Is there a space of sovereignty beyond law? Does a “war on terror” occupy that space?2 Today ’s torture debate has the virtue of transforming these matters of theory into questions that are concrete and compelling to a wide audience . All of us need to take a position on the deployment of violence in our name. Before we take a position, it may be helpful to understand what is at stake. Just as the reach and character of law are at stake in the torture debate , so is our relationship to our own history. Torture has a distinctly premodern feel to it. In the movie Pulp Fiction, a character threatening torture says he is going “to get medieval.” Modern criminal law has been a story of the progressive elimination of torture. Modern penology begins with a reconsideration of the functions and forms of punishment .3 The spectacle of torture was replaced with the modern penitentiary , and the deployment of bodily pain with the ambition to reform the criminal personality.4 Modern criminal procedure is similarly skeptical of the epistemic value of torture, believing it not to be a reliable method of ‹nding the truth. The law of torture has been displaced by the law of procedure: the suspect is told of his rights rather than tortured for whatever information he might have.5 Facing the threat of terrorism, however, we are not sure whether we are confronting a postmodern problem or a premodern form of violence. Either way many have no con‹dence that modern criminal procedure will allow us to obtain the information we seek or that the ordinary tools of criminal punishment will have much relevance as either deterrence or retribution. The symbol of both lines of frustration is Guantánamo , and, of course, it has allegedly been a site of torture.6 Cutting across the investigative and penal practice of premodern torture was the act of confession. The object of torture was confession, which had the dual purpose of providing information and acknowledging sin—whether against God or the sovereign. The ‹rst function 2 SACRED VIOLENCE collapses once torture is seen as an ineffective investigatory technique. Information obtained under torture might be false. The second function collapses once legitimate political order is understood to be founded on consent, not force. When acknowledgment of sovereign authority is brought on by torture, it might not be sincere. Does our current interest in torture represent a turn away from a practice of consent toward one of confession? While the torture debate is usually framed in terms of a need for information, undeniably the war on terror has a strong element of con›ict between confessional faiths—if not directly Muslim versus Christian, then Islamic fundamentalist versus a Judeo-Christian tradition...