Berkley Center

In the years that followed the September 11 attacks, the United States government both stretched the legal norms that govern warfare and treatment of enemies, as well as outright broke legal and moral norms governing torture. Beatings, sleep deprivation, water boarding, menacing, stress positions, and much more all became a central tool in fight against the threat of terrorism. Arguments justifying such treatments were commonplace. Utilitarian arguments pointed to the efficacy of torture and the possible lives saved; and legal arguments suggested that terrorists were unlawful combatants, falling under neither international humanitarian laws nor domestic laws. But centrally, defenders of such techniques most commonly adopted or argued for a new definition of “torture” that suggested torture was not simply the imposition of severe pain and suffering for purposes of breaking the subject’s will, but that an interrogational technique only qualifies as torture when it causes long-term and permanent harm. And for all the legal and conceptual finessing, most observers and the international legal community all saw these techniques for what they are—torture. In the words of Supreme Court Justice Potter Stewart, we knew it when we saw it. Water boarding just is torture, stress positions just are torture—we know it when we see it. The harm of torture for those tortured as well as their torturers is significant, life-altering, and most certainly long-lived. But there is another way in which torture causes harm—it causes harm to the norms that hold our societies together in a world community.

The early justifications of so-called enhanced interrogation techniques (EITs) all relied on re-defining the notion of torture. The current administration’s approach to EITs and torture seem to rely less, if at all, on re-defining torture and instead seem to solely rely on the claim that “it works.” President Trump and the current administration have expressed surprising views about torture, including suggesting they might permit waterboarding, seemingly because they believe it works. Early in the presidency, there were widespread stories of a draft executive order ordering the CIA to re-consider using torture and waterboarding in particular as an interrogational technique. Such techniques and orders are patently against both our laws and international laws. Unlike President George W. Bush, whose administration tried to argue that waterboarding is not torture, President Trump does not seem to be arguing that waterboarding is not torture, he is instead arguing that it doesn’t matter whether it is torture just as long as it works (which he wrongly believes is the case). But violating international norms in this way is not simply bad because it violates the rights of people who might be tortured, but also because it undermines the system of rules put in place to hold the world together and away from the brink of war. This is an under-discussed, but important, problem. Using interrogational torture, and calling it torture, is particularly detrimental to the international rule of law.

Using interrogational torture, and calling it torture, is particularly detrimental to the international rule of law.

More so than domestic law, international law’s legitimacy and ability to govern individual and state behavior depends on the widespread acceptance of its norms. Two common sources of international law are treaties and customary norms. Customary norms gain their normative power, as well as their very status as laws, from acceptance of such norms by individual states. Such acceptance is most commonly conveyed by acting in accord with and out of reasons contained in those norms and by criticizing others when they break such norms. For example, and at a risk of oversimplifying, one state indicates their acceptance of the norms prohibiting torture when they criticize others for engaging in torture or when they justify not using certain types of interrogational strategies by reference to the norms prohibiting torture. This makes international law and many of its norms both fragile and robust: fragile because they can be undermined by the actions of a few powerful agents and robust because they take a long time to be established and entrenched, and cannot be unilaterally annulled. 

Some scholars consider the prohibition on torture to be a jus cogens norm. Jus cogens norms, if they exist, are non-derogable norms, like the norm against genocide. One reason to think these norms are non-derogable and are in fact jus cogens norms rests on the fact that we can disagree about what exactly counts as torture or genocide, but we cannot disagree that there should be prohibitions on torture and genocide. Whether or not one thinks the prohibitions on torture rise to the level of a jus cogens norm or not, and whether or not one thinks there are such norms in the first place, the prohibition on torture is an essential part of the fabric of the international human rights law and international humanitarian law. What is dangerous about President Trump’s calls for use of torture in interrogations is his disregard for human rights laws all together. We debate all the time whether the death penalty violates the human right to life, we debate whether waterboarding violates the right not to be tortured, what we do not debate—what is sacred—is that we believe in the right not to be tortured or killed. This might seem like semantics to some, but it is not—it is what has held together the fabric of international law and made it normatively efficacious over the last 60-some years. 

​We debate all the time whether the death penalty violates the human right to life, we debate whether waterboarding violates the right not to be tortured, what we do not debate—what is sacred—is that we believe in the right not to be tortured or killed.

When asked about human rights commissions’ negotiations around the Universal Declaration of Human Rights, Jacques Maritain famously said “we agree about the [human] rights, but on condition no one asks us why.” In other words, we might not have the same reasons to be against torture and we might not agree on what constitutes torture, but we do agree that there are some actions that constitute torture and when they do, we ought to stand together against them. This protects us—it protects our humanity, as well as our lives and states. Undermining such norms is morally wrong and dangerous. Proposing that we use torture including actions we ourselves think are torture signals to the world and others who might be considering some of these norms in their deliberations that we do not find them to be relevant. And so, in addition to all the direct harms and wrongs these interrogational techniques cause, there are yet new harms we as a society face in the wake of a shift from attempts to argue they are not torture to a wholehearted and very public assertions that they are, in fact, torture.