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.