Understanding Torture: Law, Violence, and Political Identity

Introduction: Law, Language, and Difference

introduction  Law, Language, and Difference In 1987, a short review in Contemporary Sociology offered mild criticism of a book about the complicity of health professionals in torture: “The evidence and arguments presented are compelling, although one needs little persuasion to condemn such practices; thus the inclusion of photographs of torture rack[s] and exhumed bones of victims seem unnecessarily lurid.” Torture is so obviously wrong that there was no need to shock readers into agreeing with that proposition. Seven years later, in the same journal, Daniel Chirot took issue with Darius Rejali’s claim that the use of torture in twentieth-century Iran re›ects that country’s modernity. In what may have been intended as the clinching argument, Chirot asked, “If the growth of torture in twentieth-century Iran and its changing forms are caused by efforts to modernize, why do we not torture in the modern United States or Western Europe?”Modern liberal democracies simply do not torture, and it was important to stress that fact.1 Today, torture is a central legal and political issue in the United States. U.S. forces have abused prisoners at a variety of locations, including Guant ánamo Bay Naval Base, Bagram Air Base in Afghanistan, Abu Ghraib prison in Iraq, and various CIA “black sites.” Suspected terrorists have also been abused by U.S. allies, sometimes at the behest of U.S. of‹cials. Newspapers , magazines, and Web sites published stories and reproduced pictures of the abuse to widespread interest and (it was assumed) revulsion. Remonstrating editorials accompanied each revelation. Members of Congress demanded information, held hearings, and decried the abuse (but sometimes defended coercive tactics). Human rights advocates researched, documented and condemned the abuse, while international lawyers called for more restrictions on interrogators and better enforcement. Little emerged from this ›urry of publicity and discussion. Accusations of torture were met by either denials or the assertion that the worst conduct was an aberration, a deviation from the norm of humane treatment. Arguments for respecting human or individual rights ran up against claims that it was time for the “gloves to come off” after the attacks of September 11, 2001. As one of‹cial said, “If you don’t violate someone’s human rights some of the time [during an interrogation] you probably aren’t doing your job.”2 Criticisms of abuse thus occasioned a two-part response: the United States did not torture, but it might have to do some bad things to win what had become the “war on terror.” Efforts to understand Abu Ghraib, Bagram, and Guantánamo—placenames that have become metonymic for arbitrary detention, state violence, and coercive interrogation—also split. On the one hand, concern over abuse became lost in legal debates and political ‹nger-pointing. Torture became simultaneously a technical legal question that required parsing of the kind usually reserved for the Internal Revenue Code, a partisan political issue , and a test of patriotism. On the other hand, the media repeatedly presented “both sides” of the issue of coercive treatment, leaving many observers to wonder how they could assess events that happened far away under conditions about which they knew little.3 Better to shrug one’s shoulders, hope for the best, and move on. Although participants frequently invoke legal rules, the role of law in the torture debate is far from clear. Most lawyers assume torture is illegal. They may also believe that the creation of legal prohibitions against torture during the twentieth century is one of the great achievements of domestic and international human rights. It is more dif‹cult to support that conclusion through rigorous legal analysis, however, than nearly anyone, in the United States at least, would have thought even just a few years ago. In fact, lawyers for the Bush administration worked hard to portray the legal category“torture ” as a narrow term of art. They argued that conduct that might appear to be torture could actually be legal interrogation. In many quarters, these arguments were dismissed as partisan, slipshod, or repugnant. But despite its many ›aws, some of the analysis advances defensible interpretations of U.S. and international law. The law of torture, in other words, is less categorical and less constraining than it ‹rst appears. Moreover, as I will argue throughout this book, law and legal rights provide no certain bulwark against state torture. This book seeks to advance the discussion of torture and related forms of abuse by considering more deeply what law has to say...