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  • Torture Debates in the post-9/11 United States:Law, Violence, and Governmentality
  • Jinee Lokaneeta (bio)

Any instances of torture in liberal democracies are primarily considered to be either a feature of the past or, at best, aberrations that occur rarely. As the 1999 U.S. Report on Torture presented to the UN Committee against Torture stated, "Torture does not occur in the United States except in aberrational situations and never as a matter of policy."1 Even when acts of torture by U.S. soldiers were exposed at the Abu Ghraib prison in Iraq in 2004 alongside secret memos apparently justifying the use of torture in Guantánamo Bay, Cuba, U.S. state officials denied any authorization of torture in case of either Iraq or Guantánamo. As Judge Gonzales, the then White House Counsel, said in 2004,

The administration has made clear before, and I will reemphasize today that the President has not authorized, ordered or directed in any way any activity that would transgress the standards of the Torture Convention or the Torture Statute, or other applicable laws.2

In this paper, I analyze the post-9/11 debates on torture in the U.S. concerning Guantánamo Bay, Cuba. In particular, I focus on recent theorizations by scholars that Guantánamo constituted a state of exception or a space without legal and political rights.3 By analyzing the narratives created by the U.S. policy makers in formerly classified memos, I ask whether the state of exception argument adequately captures the torture debate in the context of Guantánamo (and by extension Abu Ghraib). While Guantánamo has certainly not been the only site of the torture debates especially given the extraordinary rendition program under which detainees were transferred to countries that torture or to secret CIA prisons, here I focus on Guantánamo as a primary site of the torture debates in part due to the symbolic and normative significance of this space for the post-9/11 debates.

In the paper, I suggest that in contrast to the state of exception argument a more useful framework for understanding the torture debate is to analyze the tension between law and violence in liberal democracies. This tension is most apparent in the withdrawal of the so-called torture memo by the U.S.4 The liberal state's need to distinguish its own "humane" violence from "inhumane" violence forces the state to find ways of "taming" the violence both rhetorically and literally. Rhetorically, the state first attempts to deny the very existence of torture and subsequently characterizes the acts of violence as "not torture" rather than torture.5 The reason why it is able to do so is because the extent of violence permitted is by definition ambiguous.

The withdrawal of the torture memo, of course, does not indicate that the liberal state stops using violence or (what I term) excess violence. Excess violence refers to the violence that the state claims as unnecessary but still struggles to contain it and accommodates it in some form or another. The state allows law to accommodate the possibility of using excess violence as long as it does not reach the threshold of state definition of torture. Thus, the introduction of the aggressive methods against particular subjects at Guantánamo is a manifestation of a constant negotiation of the state and law with excess violence. The broader implication of this argument is a reconceptualization of state power by rethinking Foucault's notion of governmentality. I suggest that excess violence should not merely be considered as a remnant of past spectacular torture, but rather more centrally as a part and parcel of the art of government. Here I illustrate the use of medical personnel in developing interrogation techniques as just one instance of how excess violence functions within the art of government through the formation of what Foucault has termed the juridico-medical complex.

Torture in Democracies: A Liberal Paradox

One of the self-defining features of liberal democracies is the absence of torture or indeed any "unnecessary" state violence.6 This appears both in the political rhetoric (noted earlier) as well as in liberal theory. Thus, Michael Ignatieff in...

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