How do you justify the unspeakable? Simply invoke the threat of terrorism, says Stan Cohen
‘‘Once upon a time,” begins a quite extraordinary editorial in the New York Times from late last year, “it was the United States that urged all nations to obey the letter and the spirit of international treaties and protect human rights and liberties. American leaders denounced secret prisons where people were held without charges, tortured and killed. People in the rest of the world … respected the United States for its values.” A fairy-tale history, but then the editorial gets real: the Bush administration has dishonoured this history. They condoned the systemic practice of torture and ill-treatment in secret extra-legal detention centres; they covered up and lied at domestic and international levels. And the interrogation methods used – such as the infamous water-boarding technique (simulated drowning) – fit all known definitions of torture. The White House could never acknowledge this. So its lawyers “concocted documents” to redefine torture to “neatly exclude” the things American jailers were doing and to free them and their political masters from all accountability.
Whoosh: in an ordinary 800-word editorial (no legal arguments, no shocking exposés), the mainstream national “newspaper of record” takes as obvious what legal scholars, moral philosophers and human rights activists have been struggling to establish for some eight years. Forget all those debates, articles and conferences, all those vitriolic attacks on the UN and international law; surely you know that we Americans torture but pretend that we don’t? All those claims made by what the White House scornfully called the “reality-based community” are true after all.
This ready acknowledgement of the once unspeakable has led in two directions. The first is to construct narratives to make sense of what’s happened. How did the US come to adopt a policy of state-sanctioned torture that was soon approved or at least passively condoned by most of the population? Is this American exceptionalism at work – or an example of Good People doing Bad Things under Exceptional Circumstances (another emblematic episode of torture by democracies – France in Algeria, Israel in the Occupied Territories, and Britain in Northern Ireland)? A more radical counter-narrative insists that there is no historical break to explain; torture is continuous with the American past. This thesis appears in recent books with titles like American Methods: Torture and the Logic of Repression (by Kristian Williams) and Truth, Torture and the American Way (Jennifer Harbury). There is an even more portentous narrative: the Return of Torture at the global level. From 11 September onwards we allegedly entered the “Age of Torture”: the catastrophic threat of terrorism to personal and public security allows all previous inhibitions and prohibitions to be suspended.
The threat of terrorism is taken to explain the need for innovative and pro-active measures to protect democracy and security. This leads to the second set of questions posed by the New York Times editorial. If torture can be defended like this, then perhaps it should be. The time has come to demystify the Enlightenment taboo. The policy thought to have been relegated to the dustbin of history (Zola wrote in the 19th century that the word “torture” could be erased from future dictionaries) is now reopened for discussion. The debate “for” and “against” torture becomes more than a classroom exercise for jurisprudence students. White House lawyers now actually talk about a “new paradigm” for discussing torture. This starts by formalising exceptions, rather than with the essential logic of the prohibition against torture – which is exactly like the prohibition against rape, genocide or slavery. The point of a prohibition being absolute is that no circumstances allow exceptions.
The creeping re-legitimation of torture is not a simple story of “pure” legality being hijacked by political interests. Law is a “plastic medium of discourse”. This means that the appeal to righteous justifications is invariably combined with the quite different but equally lethal claim that what is being done is not torture anyway. The bad press received by Judge Michael Mukasy, President Bush’s recent nominee for Attorney-General, dwelt on Mukasy’s apparent doubts about whether water-boarding is “really” torture. But Mukasy expressed a more radical doubt: whether the provisions of the Geneva Convention even apply to today’s enemy combatant who is “a very different kind of person” – not the same kind of person, that is, whom the Enlightenment had in mind.
Hardly the time for “radicals” to be posturing about the welcome death of Enlightenment values. Auschwitz survivor Jean Amery once recalled a momentary vision of his Nazi torturer reaching out for an implement of pain while still “stored in his head” is something of Kant, Hegel and the Nine Symphonies. This is obviously a call to take these values more rather than less seriously.