Is the “Norm” Against Torture Dying (At Least in the U.S.)?

by Julian Ku

Christopher Kutz, Professor of Law in the Jurisprudence and Social Policy Program at Berkeley Law School, has a fascinating new essay examining the possibility that “norms” against torture and assassination have died in the United States in the aftermath of the 9/11 attacks.  Kutz is not writing to support the CIA interrogation program or the US government’s use of assassination, but he does think that, as a descriptive matter, the rules against torture and assassination may be dead or dying in the U.S. He suggests that democracies have a limited ability to maintain commitment to these kinds of norms because of a democracy’s “sensitivity” to public mobilization.  Eric Posner has a typically interesting response to Kutz here.

I don’t know if the norm against torture is dead in the U.S., but I will say that the U.S. public appears completely unmoved by the release of the U.S. Senate Intelligence Committee’s very critical report on the CIA interrogation program.  A raft of new polls shows that the U.S. public’s support for an absolute ban on torture remains relatively low, while a majority, or perhaps a strong plurality, support the actual CIA program and methods that was so harshly criticized by the Senate Report.  See the WSJ/NBC poll here.  See the Pew Research Survey poll here.  We can quibble about the details, but those post-Senate Report polls show almost no change from pre-Senate Report polls.

I emphasize again that the U.S. public’s support for the CIA program does not in any way justify the legality or the morality of the program.  But the public’s failure to support a ban on torture, especially the absolute ban on torture embedded in international law and U.S. law, cannot be ignored either.  It suggests there is little chance of a prosecution over the CIA program, and it really poses a tough challenge for international lawyers. What should the response of international lawyers be when public opinion in a democracy refuses to support a central key rule of international law?  As Kutz’s paper suggests, this whole episode suggests widely accepted international law norms can be fragile, even (or especially) in liberal democracies.

11 Responses

  1. Its simple: we do not view enhanced interrogation as torture when the folks being questioned are out to destroy us. We do not accept that our conduct is a violation of international law. Not only do many of us not favor a ban we favor its use to protect our democracy. Only the strong will survive.

  2. I wonder how many American legal scholars writing in Opinio Juris have ever been actually tortured and can therefore casually write about the ‘death’ of ‘norms against torture’ as if, you know, they ever actually ‘lived’ in America,

  3. Any discussion of the relationship between public opinion and fundamental rights, including the prohibition on torture, must necessarily address the counter-majoritarian underpinnings of such rights.

    Julian asks: “What should the response of international lawyers be when public opinion in a democracy refuses to support a central key rule of international law?”

    The role of international law in such a scenario is no different than domestic law. Both domestically and internationally, public panic does not legitimize the violation of a fundamental right. That such counter-majoritarian rights are “fragile” in times of public panic is precisely why they have been established as non-derogable, fundamental rights.

  4. It is relatively simple.

    First, there has been a relentless effort to narrow the definition of torture that we do to others – I call it the political definition of torture. That definition is essentially that torture is murder only. Anything less than that with a foreigner is not torture. This political definition is the one bandied about by Cheney on Sunday. Mitchell on Megyn Kelly said that thinking of those Flight 93 types who died defending themselves and the Capitol he thought he could not let himself has a moral objection to torturing (he called It EIT’s). This was said by CIA lawyer Jonathin Fredman as early asIctober 2, 2002 when he got to Gitmo and advised, “if you kill him, you are doing it wrong. It is also the logic of the Yoo-Bybee standard of August 1, 2002 which was legal cover for the advice given before and after.

    Second, the relentless propaganda effort since 9/11 to say things that under the legal definition are well-known to be torture are not torture. This has been to spread the political definition of torture as murder only. In addition, playing on fear and the authoritarian streak in America we are encouraged to support those who live by the political definition of torture. Those persons get power and money by asserting this political definition and so in their ambition they provide a reassurance by showing themselves as being hard measure persons while maintaining they are not torturers. It is torture without torturers and all torturers are reframed as patriots. To be against the hard measures is to be unpatriotic and sympathetic to beheaders.

    Third, there is good torture – what our guys do to foreigners and bad torture (which is much less narrowly defined) which is what foreigners do to our people.

    Fourth, the international standard is supported therefore when Americans are tortured abroad but not when we and our allies torture abroad. This phenomenon is similar to that in Latin America that Darius Rejali talks about in his great book on torture.

    Fifth, within the United States we have a racial divide where the white majority is at least in significant numbers indifferent to abuse by the police of people of color, particularly black men. Black lives do not matter enough. This racialized view that has its antecedents in slavery and so forth transforms itself when we are discussing foreigners in an American rainbow coalition who are seduced by the political definition of torture being the standard for foreigners. Few see the interconnection between these forms of brutality.

    Sixth, the task of the international lawyer is to point out the difference between the political definition of torture being exploited by members of the elite for their advantage in power and money (we keep you safe) and the legal definition which is significantly broader as a matter of domestic and even broader as a matter of international law. In that regard the court-martialing of soldiers at Abu Ghraib which no one has mentioned except me from what I have seen this past ten days reminds us of the military interest in the political definition of torture NOT being the standard.

    Seventh, the total fecklessness of the political class toward prosecution of high level officials (while they threw soldiers under the bus at Abu Ghraib) gives the public the sense that all of this political definition torture is legitimate and should be seen as legitimate. The same works for the intelligence torturers and police torturers domestically.

    Eight, a perverse fascination with breaking any foreigner who is associated with attacking us. Much like breaking a wild horse or more darkly breaking a black into a slave. These are deep and dark tropes in the American unconscious that play themselves out everyday and are refracted against these foreigners who have the temerity to not love us and even hate us. Having them be broken is a psychic pleasure vicariously experienced by the interviews of those who tortured them we have seen this past ten days. Megyn Kelly’s palpable excitement in her fawning interview of James Mitchell is a manifestation of that excitement. The discussing rectal feeding as opposed to calling it what it is – rape and assault with no medical basis to be done – allows a viyeuristic torture open fantasy to be lived of humiliating these people who dare to hate us. The relish in imagining such abuse is like the humor about prison rape in the US.

    These are the things going on in a complex dance. We of course will recoil from this explosion of the id at some point provided there are people willing I assert the rule of law rather than the political definition of torture. Those persons have to be as relentless infighting the pr machine of the powerful which is exploiting torture to get itself into or to maintain it in power. We will see Repubkicand again in debates saying they would EIT but not torture (with the wink that torture is murder only).

    It is sick. That is why there are those of his who perceive this sickness and continue to reassert the rule against this kind of barbarism. Each act we do is reflected by the enemies in mimicking our political definition of torture or willing to go farther with beheading of infidels being their indifference to our human life. Also, to their enemies as part of a death cult vision (great description of ISIL by the Australians).

    So we are in the hands of our own death cult while we fight another death cult. That is our grim reality today. But, we must persevere against both if we have any sense that there is something called human dignity. Unfortunately, many law professors are quite enamored with the death cult of our side and so we see their perverse writings.

    Just sayin’

  5. By the way, the Bushes wanting JEB Bush to run is about making sure pardons can be done for the torture. See his dad on Iran-Contra. His brother on blocking release of his dad’s normally available records from his years running CIA with the overthrow of Allende and the Operation Condor stuff with Henry the K.

  6. I think it is not conflict,in one way US constitution law has rule to protect right of people.But if the object is terrorist then some people or medias will think that is rational for using tortue to ensure all other person’s life,because of we all know those are bad guys and should be treated different with violence is necessary.
    On the other way,International law or CIL have little effect on protection of human rights,like in south korea.
    People in countries will focus much more on the life of
    their own countries.Torture is under the authority of the government,why it can exist I thought may be is because of the policy under the torture.This is some kind like a country attack the other country which have potential risk and there is some cases precedent before,so other countries will make a reference.
    As a law student,we learn that we should protect the human rights,no matter whom he is.Because everyone is equal

  7. Noah has aptly pointed out why there is an absolute prohibition of torture and why it will likely continue as a matter of law. And what prosecutor, acting professionally, would allow political polls to dictate whether to prosecute war crimes (torture, cruel treatment, and inhuman treatment as well as secret detention) and crimes against humanity (an admitted program of secret detention)?

  8. –especially when the “majority” is 51% (plus or minus errors in sampling, etc.)?
    Obama’s refusal to prosecute is far more troubling in a democracy where, under Article II, section 3 of the Constitution, the President has a duty to faithfully execute the laws?

  9. Great post. For those who are interested, here was my crack at the issue a few years back:

    Ryder McKeown, Norm Regress: US Revisionism and The Slow Death of the Torture Norm, published in the journal ‘International Relations’

    Interestingly, while I then thought that the administration was less committed to the torture norm than the American public, the situation now seems reversed. Not sure where this leaves the norm…

  10. That’s why it’s so important to know the truth about 9/11. God bless all those who seek the truth.

    Happy Holidays!5

  11. At the risk of repeating myself, I don’t think it ever was a norm. Congress essentially ratified a treaty they never thought would really apply to the nation, and once it did, the US promptly did not comply with it.

    Reciprocity may seem dead as an invoked and formalized article of international law, but as a practical matter, I don’t think it really ever went anywhere.

    The United States’ enemies seem unconcerned with complying with the laws of war, so the citizens of the country are largely unmotivated to pursue violations against them.

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