Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?

by Julian Ku

I don’t have much useful to add to the already voluminous online debate on the legality or morality of the U.S. Senate Intelligence Committee’s report on the CIA’s “enhanced interrogation” or “torture” program.  In this post, I want to focus on an interesting data point coming out of this debate.  As best as I can tell, international law’s position that torture can never be legally justified doesn’t seem to be shared by a majority (or even close to a majority) of the U.S. public.  This doesn’t mean that the CIA program was legal.   But international lawyers need to also consider the fact that U.S. public support for international law’s absolute prohibition of torture has only declined over the past 13 years, despite the much greater awareness and public discussion of these issues, especially by international lawyers.

I don’t think I am wrong in stating that the CAT is essentially an absolute ban on torture, no matter what the circumstances or justification.  (From CAT Art. 2(2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”).  There might be some debate as to whether there is an implicit necessity defense in U.S. law, but I don’t think there is much international support for this view.  This absolutist position would seem to limit or perhaps eliminate the “necessity” defense that has drawn so much attention in the U.S. political debate. I think international law’s prohibition on torture in any circumstances explains why international lawyers are among the most vehement critics of the CIA program.

For instance, the U.N.’s Ben Emmerson is calling again for prosecutions, and experts continue to suggest foreign countries may prosecute Bush-era officials for torture international international law.  The ICC may open an investigation, although as Eugene Kontorovich outlines here, there are pretty serious jurisdictional obstacles including questions as to whether the CIA program involving 39 detainees would even satisfy the murky Art. 17 “gravity” requirement.  In any event, I think it is safe to say there consensus among most international lawyers that many if not all of the methods in the CIA program were indeed “torture”  or at least “cruel, inhuman, or degrading” treatment as defined in the Convention Against Torture.  Furthermore, there is strong support for “accountability” via prosecutions of Bush-era officials.

However, it is worth noting that reliable public opinion surveys show that U.S. public opinion has actually shifted away from the international law “absolute ban on torture” view toward a more flexible “torture is OK in some circumstances” view.  FiveThirtyEight.com points out that the Pew Research Survey, which has polled Americans on whether torture can be justified since 2004, has found a decline in support for the absolute ban on torture.  Indeed, in its last survey back in 2011, 53% of those surveyed said torture could “sometimes” or “often” (!!) be justified.  Another nearly 20% were willing to allow torture in “rare” cases.  Only 30% or so of those polled supported an absolute ban on torture, which is the position taken by international law.  This means nearly 70% of the U.S. public seems to be willing to tolerate torture in some exceptional circumstances.

An overnight poll after the Senate report was released has not shown drastically different numbers. When asked specifically about waterboarding and the other tactics described in the Senate report, 47% of the “likely voters” surveyed said they agreed the tactics should have been used, with 33% disagreeing and 20% unsure.  It is likely that many of the 20% are unlikely to support an absolute ban on torture, but might agree that waterboarding and other tactics in this particular case were unjustified.

Again, I am not claiming that public opinion should determine whether the CIA program was legal.  But international lawyers cannot ignore the disconnect between US public opinion and international law’s absolute ban on torture.   This disconnect may explain why, despite international law’s rejection of a necessity defense, the U.S. public debate is almost all about whether the CIA program was effective or not. This divergence will probably explain why there will be no prosecutions or truth commissions in the U.S. over the CIA program.  And it should remind international lawyers that even the most widely shared and unquestioned of international treaties can diverge sharply from the general public’s views.


9 Responses

  1. legality or morality of the report? was that a slip?
    Perhaps part of the problem is that those who know international law are starting to appear in the media as opposed to so many years of talking heads talking to each other (all of whom were non-lawyers) after the revelations re: Iraq torture and at later times.
    Lawyers that know the law should reiterate that, yes, the CAT reflects the absolute ban on torture, the 1949 Geneva Conventions do as well (e.g., “in all circumstances”), and so do several human rights treaties, such as Art. 7 of the ICCPR (which also sets forth nonderogable human rights). Further, the absolute ban applies as customary international law and as jus cogens.
    Of course, lawyers like Taft and all of the Judge Advocate Generals pointed some of this out to Bush, Cheney, Gonzales, Addington, and others. Of course, so did the ICRC, reports of the CAT Committee, reports of the HR Comm. under the ICCPR, reports of UN Experts regarding Guantanamo, and many writers in law reviews prior to creation of the three infamous Bardbury memos in 2005.

  2. The obvious reason is the relentless propaganda done by the government in favor of torture all these years. Brennan was another example today, but the Senate Torture Report details the efforts to share classified information in a misrepresented manner to friendly journalists over these years to lie to the American public. When you keep people in a constant state of fear and also tell them that torture works, then you get this response. When, of course, we see that torture is a does not work – as the Senate Majority Report details – then we get some contrary information. Yet, we can see all the surrogated and principals on television since Sunday trying to hammer the big lie that the torture was effective.

  3. I suspect that Americans do not truly believe that torture is acceptable. Rather, I suspect those that said torture was acceptable really believe that OUR torture is acceptable. If you rephrased the question to ask whether it is acceptable for the government of Iran to torture Americans for information, I doubt that a majority would agree that such torture would be justified. Even if you rephrased it to ask whether the government of China could use torture to obtain information from Chinese prisoners, I suspect that the rate at which Americans approved such torture would decline significantly.
    I guess my argument is that asking a person who strongly identifies with an alleged wrongdoer whether that wrongdoer’s acts are justified tells you relatively little about how they feel about the alleged conduct. Rather, it just acts as a proxy for the strength of their identification with the alleged wrongdoer.
    Or to put it another way, group identification trumps morality, particularly when the victims of the alleged conduct are the “other.” It also explains why we (both the government and the public) seem so hypocritical. We really do believe that torture is wrong, except when it us that engages in it.

  4. Great post. Watching and reading various media coverage (except Chinese and Russian English language articles) I see that the American public rarely hear about the treaties. My conclusion is that there is a parochial bias against IL, and even the State Department remains curiously mute.

  5. The question posed is: “Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?”

    The answer is “their exposure to incessant propaganda” by the best (The Ways of Bernays).

  6. I don’t think this is a particularly new viewpoint.

    The real question is… why did the United States sign on to a treaty and a norm it doesn’t agree with? I suspect, because like most HR treaties, there is unlikely to be any real enforcement or repercussions for failing to adhere to the treaty.

    The state of international law is such that many countries sign all kinds of broad agreements on human rights and then continue their current practices without alteration.

  7. I find the whole argument silly. You don’t ask from a purported genocider whether she or her fellow citizens believe in genocide. Yet, all the sudden when it is about US public opinion, it ought to have some impact. Could you provide me with a reason?

    I am very much in agreement with Stuart Ford above that simply having the question the other way around (is it OK for ISIS to torture American journalists) would likely find a fairly different answer. And if you have your norms based on the perpetrator, then you have fairly little in terms of norms to begin with as what counts is the actor not the act.

    Moreover, as has been pointed out countless times the whole necessity argument is moot. I think that e.g. Gäfgen case from ECtHR shows it pretty well: there you have a genuine “ticking bomb” case where a life of a small child is at risk, and still, there was no right even to threaten with torture. And that’s the way it should be. It is no moral high-horsism.

    No. International Law should not take into consideration the public opinion of silliness. I think that public opinion of hutus was that it is a OK to kill tutsis. And the public opinion of many in Nazi Germany was that it is a OK to just exterminate those enemies of the Race. Or the torture and disappearance of all those people in Southern America. It was most certainly quite fine with a significant part of the population as well. Wasn’t it just because of these reasons, that international law was re-created in the aftermath of the second world war? So that everyone would have right to have rights?

  8. I’d suggest that part of the public opinion that supports “OUR torture” encompasses people who vividly recall 9/11. People who saw the Twin Towers get slammed by airplanes and then collapse. People who knew or saw the first responders running in but never coming out. There is no sympathy or feeling held by some people for those individuals who engage in or support such activities.

    Do not dismiss these people because to do so is foolish and forgetful of what the reality of the world is like.

  9. Interesting article.

    If you’re interested, here was my crack at the issue a few years back, explaining how ‘revisionist’ efforts were leading to the regression of the norm against torture.

    Ryder McKeown, ‘Norm Regress: US Revisionism and The Slow Death of the Torture Norm’ International Relations 23:1 (March 2009), 5-25




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