Acknowledgements
I have accumulated no shortage of debts in writing this book. What follows is only a partial list.
Many of my mentors and colleagues at the University of Washington, my graduate school alma mater, deserve special mention. Beth Kier was the project’s first and most consistent champion. Her early encouragement, persistent enthusiasm, and vision proved invaluable. Jon Mercer’s detailed comments on several underdeveloped drafts, along with plenty of discussion time, improved my work and made graduate school life more enjoyable. I puzzled through the project’s ideas with Jamie Mayerfeld, who helped me outline the limits of my arguments and take seriously the ethical implications. Chris Adolph and Jim Caporaso showed me how my approach was more compatible with other perspectives than I had realized. Beth and Jon’s University of Washington International Security Colloquium (UWISC) was a fantastic atmosphere for trying out ideas, and the UWISC regulars provided excellent feedback when I presented on parts of the project. Following my presentation, a lengthy discussion with Stephan Hamberg helped me clarify the book’s central claims. Many other colleagues at UW, too numerous to name, had a hand in moving the project forward.
I owe special thanks to archivists at the National Archives, the National Security Archives, and the U.S. Army Heritage and Education Center, as well as the kind hosts that put me up in Washington, D.C., and Carlisle, PA, for many days. Marlea Leljedal and Christopher Einolf sent me materials that I had previously overlooked.
My colleagues at Bates College, where I taught after UW, cheered on my writing progress, and some of the feedback during my job talk there carried over into the final product. Leslie Hill and Stephen Engel showed me how feminist theorizing complemented my explanations. Jim Richter, Jason Scheideman, and Jiyoung Ko kept my mind on international politics, and Nina Hagel fueled me with words of encouragement, professional advice, and baked goods.
The book’s post-dissertation life got a much-needed boost when Nimah Mazaheri told me to send him the manuscript, refused to take “not yet” for
an answer, and gave me detailed comments. Nimah’s advice on this and other projects, plus his generosity as an informal mentor, continues to inspire me. Chris Heurlin’s assembled student group at Bowdoin, MIT’s Security Studies Working Group, and Harvard’s Political Violence Working Group provided additional chances to present and hear back from smart and engaged participants. Annual APSA, MPSA, ISA, and NEPSA meetings left me grateful for discussants’ and participants’ insights.
This book’s finishing touches were completed while on a fellowship funded by the Stanton Foundation at the Harvard Kennedy School’s Belfer Center for Science and International Affairs. A presentation for the International Security Program’s seminar series, well-led by Steve Miller and Steve Walt and administered by Susan Lynch, gave me a chance to receive some lastminute suggestions. A follow-up exchange with Averell Schmidt helped me amend the concluding chapter.
I am grateful for Angela Chnapko, Alexcee Bechthold, Saloni Vohra, and their colleagues at Oxford University Press and Newgen Publishing. Two excellent anonymous readers’ comments improved the manuscript substantially and limited future embarrassments.
My mother and step-father provided encouragement, as did my sisters. My father was a source of inspiration. My mother-in-law and her husband were also in my corner. It was not just verbal support, either; grandparents grandparented the kids so that I could sneak in extra researching and writing time.
The breadth of my debt to my wife Abby is difficult to capture—from crucial emotional support to writing help to taking the lead on parenting at key moments. She is also jealous of my time and energy in all the best ways, and I’m thankful for how she keeps me grounded in family. My children, August and Greta, have shown admirable patience with me. They help me believe that the future is bright and the world worth improving.
1 Torture and the Norm against It Undying Rivals
“Unthinkable.” This is how observers repeatedly described the post-2001 U.S. torture program during the war on terror. “I am willing to think the unthinkable,” one prominent legal commentator proudly announced in his 2002 book arguing that interrogators should pursue “torture warrants” to give what he considered necessary work the legal cover that a nation of laws demands. That same year, the Central Intelligence Agency scrambled to put together a secret interrogation program that included severe sleep deprivation, confinement in small spaces, forced standing, and choking by water, i.e., waterboarding. After the release of photos showing U.S. soldiers abusing prisoners at the Abu Ghraib prison in Iraq in 2004, another well-known lawyer and commentator discussed “thinking the unthinkable” en route to claiming that torture should, in essence, be (to borrow a phrase from the 1990s abortion debate in the United States), “safe, legal, and rare.” Critics of torture also used the word. “[T]he unthinkable is not only being thought, but openly considered,” reported one columnist as part of an argument that torture should never be permitted. “Torture used to be unthinkable,” lamented another.1 The term has also made its way into the titles of scholarly works and movies.2
The label “unthinkable” sometimes serves as a synonym for “unspeakable,” referring to the gruesome nature of the act. McCarthy (2004) writes that “even reading or thinking about such practices may make the teeth clench and the stomach churn.” It also suggests a perceived mismatch between American moral commitments and torture. Both international and domestic norms proscribe torture. That is, there exists a collective expectation that torture is wrong. Deeply held norms can lend the acts they proscribe an “unthinking” quality—violating such taboos does not, or should not, even come to mind (Price and Tennenwald 1996). Critics of the torture program also frequently point out that the United States has a history of treating prisoners well. After the truth of the post-2001 program set in, it prompted a reevaluation. As legal
American Torture from the Philippines to Iraq. William L. d’Ambruoso, Oxford University Press. © Oxford University Press 2022. DOI: 10.1093/oso/9780197570326.003.0001
scholars such as Luban (2007, 1425) observed, “Torture used to be incompatible with American values.” The United States used to punish torturers, sometimes with death (Begala 2009).
While I will contend that the U.S. record of detainee abuse is far from spotless, and the norm against torture is not as robust as it could be, observers of war-on-terror torture were somewhat justified in their surprise. After all, for torture to reach all the way to the twenty-first century in the United States, it had to be remarkably resilient. Torture had to survive the intellectual assault from European Enlightenment authors like Beccaria, who argued persuasively that torture for judicial purposes would generate lots of false confessions. It had to find a way around the founding documents of the United States, which, with strong influence from European thinkers and experience, expressly prohibit cruel and unusual punishment in the Eighth Amendment to the Constitution. Torture persisted despite being prohibited in the American Civil War’s Lieber Code, a forerunner to modern laws of war. It managed to continue beyond the Geneva Conventions from the first half of the twentieth century and the Convention against Torture of 1984. Torture has also endured less legalistic admonishment. The U.S. government’s own State Department has been a leading whistleblower for torture and other cruel treatment abroad, with reports so comprehensive that scholars have used them to construct torture variables for quantitative analysis.3 “The norm against torture,” writes Andrew Linklater (2007, 113), “has been thought to be the pre-eminent manifestation of a global commitment to civilized norms.”4 This book asks the following: Why has torture recurred, and in particular why have torture and the norm against it persisted in tandem like undying rivals for over a century?
Torture and liberalism make for especially strange bedfellows. Luban (2007) argues that most forms of torture, for punishment or humiliation, make no sense in combination with the liberal value of popular sovereignty, because the people would be trying to impress themselves with a show of absolute control. Luban believes that the incompatibility between torture for intelligence and liberalism is less fundamental, and he discusses at length why even the promise of limited, rare torture exclusively for intelligence in high-stakes cases would unravel. His argument understates the case. Even torture for intelligence is essentially illiberal because it treats individuals as means rather than ends. Michael Ignatieff writes that “torture should remain anathema to a liberal democracy and should never be regulated, countenanced, or covertly accepted in a war on terror. For torture, when
committed by a state, expresses the state’s ultimate view that human beings are expendable” (quoted in Lukes 2005, 4).
While liberal states have not tortured as much as their illiberal counterparts, they have done their share. In fact, they have invented their own “liberal” methods. Darius Rejali (2007) explains how international and domestic monitoring of detainee treatment has forced liberal states to develop and perpetuate “stealth torture” methods that leave no trace and help the perpetrator escape detection. Any given “enhanced interrogation” technique from the war on terror is more likely to be a descendent of American slavery or British military punishment than fascist or Communist coercion. These techniques lived on through the twentieth century, in British and French colonies, as well as in American counterinsurgencies and interrogation manuals. The U.S. war on terror brought liberal-democratic torture to this century.
The case of the war on terror is particularly crucial for arguing that torture has been persistent, because many of the background conditions that carried detainee abuse through the twentieth century are no longer in effect. Oldfashioned colonialism is mostly done, and liberal democracies’ rejections of the horrors of torture may even have had a hand in colonialism’s demise (Merom 2003). The Cold War is over, and with it the counterrevolutionary torture that clandestine U.S. bureaucracies helped to develop and spread. The three main empirical cases of this book—the Philippine-American War (1899–1902), the CIA from its founding to the Vietnam War, and the post2001 war on terror—correspond with imperialism, the Cold War, and post–Cold War conflict, respectively. My strategy is to extract from these cases the common factors that have allowed torture to persist across the varied contexts.
The hypocrisy of liberal torture would not surprise most international relations scholars, especially realists and rational choice theorists who expect states to say and do things in pursuit of self-gain, even if their words and deeds are mutually inconsistent.5 However, there are (at least) five instrumental reasons for avoiding interrogational torture. First, torture is a questionable method for gathering intelligence. Perhaps the most persistent critique of interrogational torture is its flimsy connection to truth: victims are likely to say anything, including false statements, to stop the suffering.6 Torture “tests endurance rather than veracity” (Langbein 2004, 73). Second, torture can fuel the enemy’s recruitment efforts, giving life to terrorist and insurgent groups.7 Third, torture may deter the enemy from surrendering,
prolonging wars and causing more casualties on both sides.8 Fourth, torture can produce extreme stress in the interrogator (Risen 2014). Fifth, torture runs counter to the “hearts and minds” campaigns that many modern counterinsurgency strategists advocate (U.S. Army 2006). Torture does not easily lend itself to straightforward, utility-maximizing explanations. Why have states persisted in practicing it? More broadly, why would states do something that is both odious and of dubious instrumental value?
If the reader buys the foregoing argument that torture for intelligence carries great risks and little promise, then the significance of the puzzle is clear. Torture that does not work has no redeeming ethical qualities and is therefore a horrendous mistake. Knowing why and how it occurs can have implications for its eradication. And although the puzzle specifies torture for intelligence, people turn to torture for many reasons—punishment, forced confession, revenge, social control, sadistic glee—but it often begins with superiors’ approval of interrogational torture. Once states approve torture, it is notoriously difficult to regulate (Rejali 2007, 454–58). Understanding why states approve torture for intelligence can have implications for preventing other types of torture as well.
Even a reader who is skeptical of torture’s supposed inefficacy has reason to seek explanations. Liberal states’ use of torture is still puzzling on ideological grounds. Moreover, even if torture reliably yields valuable information, this does not imply that it was chosen for rational reasons. The choice still needs explanation.
The puzzle is also significant because it provides a more complete picture of self-proclaimed liberal democracies. Torture by liberal democracies has evoked deep questions and debates about who these liberal states are and what values they should uphold; it can lead to heated confrontations over identity. (Even apologists for torture use the language of definition: after the press showed pictures of torture at Abu Ghraib prison in Iraq, President George W. Bush, whose approval of coercive interrogation techniques is partly responsible for the abuse, stated, “This is not the America I know” [Klein 2009].) A clearer picture of why liberal democracies torture could have implications for who liberal democracies are.
Summary of the Argument
I argue that the norm against torture has two features that can help explain why violation of the norm occurs. First, the norm against torture may contribute to
the belief that torture works. By categorizing certain behavior as appropriate, norms also define what is inappropriate. Some policymakers and soldiers believe (not always unreasonably) that in the nasty world of international politics, cheaters—those who are willing to break the rules—have an advantage, especially in security matters. “Bad” deeds become “good” because they appear effective. Rule-following becomes naïve and dangerous. Torture, a practice condemned in international laws and norms at least by name, appears sufficiently harsh to take on the worst of the worst in international politics. I call this the Cheaters Win argument.
Second, despite universal condemnation, the antitorture norm is—and has been—insufficiently robust. In particular, the norm lacks what Jeffrey Legro (1997) calls “specificity,” or the ability to separate norm-compliant behavior from violations. The problem is inherent in torture itself. For example, it is impossible to specify exactly how many hours must pass before forced standing becomes torture. As a result of torture’s blurry definition, torturers can justify their actions by favorable comparison (“The other side does worse”), modifiers (“torture lite”), euphemisms (“enhanced interrogation”), and flat-out denial (“This isn’t torture”). They can also redefine torture to exclude their own acts. In short, lack of specificity leads to justifications and redefinitions, which in turn enable transgressions. I refer to this as the Lack of Specificity explanation.
At first blush, these two explanations appear to be in conflict: if the torture norm lacks specificity, then maybe it isn’t lending torture an aura of effectiveness, because it isn’t defining torture as clearly inappropriate. However, an actor sufficiently motivated to be both moral and effective can make the explanations complementary in practice: he or she could understand “torture lite” or “enhanced interrogation techniques” as sufficiently harsh to be effective, but far enough down the sliding scale from the most overtly brutal abuses to be morally and legally permissible.
Both of these explanations fall squarely in the constructivist school of international relations. Constructivists take norms seriously. My second explanation echoes a fairly conventional hypothesis: more robust norms entail more compliance. I am arguing that, along the specificity dimension, the torture norm is not as robust as some observers have believed, and compliance has suffered as a result. The first explanation pushes constructivism a bit further. Constructivists believe that norms can have “constitutive” effects; that is, they can define interests, roles, and identities. For proscriptive norms, this usually means that the norms help states define themselves as moral and civilized by avoiding the behavior that the norm condemns. I am turning this
typical scenario on its head by suggesting that for some actors, proscriptive norms define what is off-limits—and therefore effective—in international politics.
Plan for the Book
Chapter 2 discusses the answered and unanswered questions regarding liberal democracies’ use of torture. I show why the stealth techniques favored by democracies deserve the label “torture.” I give a very brief history of democratic torture. The chapter then considers some of the available explanations for the recurrence of torture. First, perhaps torture occurs when actors perceive that they have permission, even a mandate, from significant segments of the population to do so. Alternatively, public monitoring might be insufficient, and torture sufficiently surreptitious, to weaken the restraining effects of democracy. Second, torture may be a rational response to desperate situations. Third, revenge and racism can lead to torture. Fourth, pro-torture advocacy can pervade organizational cultures. Most of these alternatives are distinct from, but still compatible with, my central claims, and I find some evidence for them in the empirical chapters.
While the alternatives make meaningful contributions to our understanding of the recurrence of torture, they leave important questions unanswered. If torturers are responding to popular demand, then why is torture so often done in secret? And when it is exposed, why do torturers frequently play down their acts rather than try to deny that such acts occurred at all? If civilian and military leaders are desperate, why turn to torturers rather than other interrogation specialists, especially in instances in which the latter have more experience (e.g., during the war on terror)? If racism or revenge explains torture, why does torture so often occur as part of a search for intelligence?
Chapter 3, in which I present my explanations, provides some answers to these questions. The torture norm’s specificity problem clarifies why torturers frequently try to sell their acts as legitimate rather than deny that those acts occurred. Moreover, the promise—a false promise, in my view—that certain torture techniques will be harsh enough to work but mild enough to be sold as legal and ethical explains why interrogators are repeatedly attracted to torture as an interrogation tool. The chapter then details the methodology. I use in-depth case studies, focusing on important moments in each case when
key actors made torture more likely. The chapter concludes with a discussion of case selection.
In chapter 4, I explain the U.S. use of torture in the Philippine-American War, which was an offshoot of the Spanish-American War in 1898. The Philippines was a Spanish colony that Spain essentially forfeited to the United States after it lost the war. Filipino leaders had been led to believe that their independence was imminent, and when the United States did not grant it, war broke out. The U.S. Army won the war, in part through the use of brutal tactics, including free-fire zones and village burning. American soldiers and Filipino allies also used torture, most famously the “water cure.”
To my knowledge, civilian politicians and top generals never explicitly advocated torture of Filipino insurgents. Rather, consistent with the Cheaters Win explanation, some soldiers (up to midlevel officers) believed that interrogations required stern measures that represented the extent of the laws of war at that time and went beyond the standards with which most Americans were comfortable. Political elites such as Theodore Roosevelt (as influential civilian, vice president, and president) and high-level officers pushed for more unrestrained methods of war-fighting in general, and this attitude created a context in which the occurrence of torture was unsurprising. As for the Lack of Specificity argument, the hearings, trials, and letters exchanged toward the end of the war are filled with quibbling over what exactly constitutes torture and whether techniques like pumping and choking by water should count. Torturers also justified themselves by going on about how much more terrible the enemy was and how mild the American tactics were by contrast. These justifications would have been impossible if torture were clearly separate from less brutal acts.
I also examine alternative explanations for torture during the PhilippineAmerican War. I find some evidence that torture and other severe tactics were timed with an eye on U.S. domestic politics. With President William McKinley running for reelection, the Republicans and some of their allies in uniform had been pretending that the war was well in hand in the lead-up to the 1900 elections. For this reason, some civilians and officers waited to enact harsh measures until after the elections, lest it complicate the story they were selling. Other soldiers may have heard about the anticipated changes and gotten a head start, but the evidence for this is not ironclad, and the gradual increase in torture is only somewhat consistent with an argument based on election timing. The degree of desperation also does not appear to affect the timing of torture and other cruel tactics in the war, at least at the strategic
level. Some of the most brutal conduct by the U.S. military occurred when the war was actually all but over, from mid-1901 to 1902.
Chapter 5 traces the Central Intelligence Agency’s development and use of torture from the origins of the agency to the Vietnam War, as well as the U.S. military’s use of torture during the war. This “case” is not as neatly defined as the others, though some scholars detect a through-line over this time period.9 I focus on four areas of development and implementation. First, I examine the formation and growth of a U.S. intelligence service. The CIA followed several other iterations (and accompanying acronyms) of peacetime intelligence services, and all were the children of the Office of Strategic Services, or OSS, the U.S. intelligence agency during World War II. I argue that part of the OSS’s philosophy was that war gave those willing to push limits an advantage. Thus, the OSS specialized in spying, a taboo activity thought at the time to be an underhanded and less than honorable practice of war. It also set about developing other tricks to gain the upper hand over the enemy. The CIA was founded in part on this approach. Both the CIA skeptics (e.g., Harry Truman) and its defenders (e.g., Gen. John Magruder) expected that the CIA would spend much of its time, money, and energy tiptoeing along the limits of normative and legal acceptability. They were not wrong. The CIA had shadiness baked into its foundations, suggesting an organizational culture partially defined by a willingness to do things other liberaldemocratic organizations would not.
Second, I examine the origins and growth of the CIA’s MKULTRA program and its cousins and predecessors (e.g., Project ARTICHOKE).10 These programs attempted to copy and improve upon what the CIA believed to be Communist methods of mind and behavioral control through the use of drugs, hypnosis, and other techniques amounting to abuse.11 One of the reasons for the growth of the programs stems from President Dwight Eisenhower’s approach to the CIA. Eisenhower encouraged the shadowy, proactive, secretly funded side of the CIA, in contrast to Truman’s preference for an above-board operation. Eisenhower’s reasons stemmed from his belief that to fight the unscrupulous Communists, while at the same time not throwing out the American moral compass, the United States was going to have to bend some rules on the sly. As with the Philippine-American War case, the connection between the political leadership and detainee abuse here is loose but still meaningful: a brainwashing program was one symptom of Eisenhower’s belief that the United States needed to fight a surreptitious, limits-pushing war against the Communists.
Chapter 5 also investigates the CIA’s KUBARK interrogation manual of 1963 and its implementation in the Vietnam War. Techniques included sensory deprivation, hypnosis, and pain such as forced standing that makes the detainee believe that their suffering is somewhat self-inflicted. The KUBARK manual, partly a product of the mind-control research, contains evidence for the Lack of Specificity argument, specifically in the favorable comparisons between the CIA’s preferred psychological methods and more blatantly physical tactics that it shuns. CIA interrogators in Vietnam drew similar contrasts to justify their methods.
The fourth area discussed in chapter 5 centers on the U.S. military. While some soldiers’ behavior falls in line with my thesis’s expectations, other testimony regarding torture challenges my argument. Torture in Vietnam was as much about anger, revenge, and racism as intelligence gathering. Moreover, soldiers returned from the war in a confessional mood, and they did not pretend that their actions were anything less than torture. My account would be incomplete without these explanations.
Chapter 6 covers torture during the post-2001 U.S. war on terror. This case is different from the others in that the Bush administration’s embrace of abusive methods, though initially secret, was explicit. While the openness with which the administration defended torture has negative implications for the endurance of the antitorture norm, it does benefit the researcher, because administration officials have talked at length about their stances, and some of the memos and other materials documenting the early internal debate over interrogation tactics have come to light. I focus on the key decisions along three partially overlapping paths to abuse: the mix of vague instructions and detailed allowances that led to torture by the U.S. military, the selection of certain countries to which detainees were sent for abusive interrogation, and the development and approval of “enhanced interrogation techniques” used by the CIA.
I find strong evidence for my central claims in the war-on-terror case. Within a few days of the September 11 attacks, key Bush administration officials, including the president and vice president, were adamant about removing restrictions from those charged with carrying out the U.S. response. In the lead-up to the crucial 2002 decision to forgo the Geneva Conventions, backers of the torture program within the administration argued that Geneva would put too many constraints on interrogators. The CIA’s internal program as well as its use of extraordinary rendition (in which it sent detainees to countries like Syria and Egypt to be tortured)
exposes the same convictions about the efficacy of interrogations unbound by norms and laws. Indeed, concerns about circumventing standards—rather than, say, experience or a proven track record—drove the administration’s decision to have the CIA take the lead on interrogation of detainees. Throughout, the Bush administration equated effective intelligence-gathering with tactics that bent and broke the laws and norms prohibiting torture.
The Bush torture programs might have proven impossible if the administration hadn’t been able to exploit the lack of specificity inherent in the torture norm. The torture memos, the series of legal documents sanctioning abusive interrogation, (re)defined torture in the narrowest terms, freeing interrogators in the CIA and the military to use a wide range of methods, alone and in combination. The administration consistently denied that the euphemistically named enhanced interrogation techniques amounted to torture. If torture were more well-defined, the redefinitions, denials, and euphemisms might not have been possible.
Americans were desperate to prevent another major terrorist attack on the homeland in the early part of the war on terror, and this desperation played a part in their search for extraordinary means. The architects of the torture policy did not resemble fully rational actors, however, at least with reference to the goal of getting the most accurate intelligence. They did not sift carefully through interrogation techniques looking for the most effective ones according to the best evidence, nor did they empower the most experienced interrogators to lead the teams. Early advocates of torture were more concerned with legality than effectiveness. And while the Bush administration did sell sketches of its muscular foreign policy approach to the public, the torture program was not in place simply to satisfy public demand. Much of the program was kept secret, and the administration revealed details only reluctantly.
Chapter 7 discusses the scope of generalizability for my central explanation. For instance, I investigate whether the recent rise of authoritarianism might be attributable to the impression among democratic leaders that autocrats possess the advantages of the unrestrained, combined with the notion that it is possible to chip away at liberal-democratic norms. I unpack the limits of the book’s argument as well. My argument does not explain why torture in the war on terror ended, for example. I also list the primary takeaways of the book, summarized as follows: (a) the antitorture norm’s robustness problem is of long standing; (b) to lessen the chances of abuse, legislation
must attack the gray zones at the edge of torture, especially in the United States; (c) implicit links between norm-breaking harshness and effectiveness are influential and need reexamination; and (d) norms can even define the preferences of violators, suggesting broad influence. The book ends with a look at the future of the antitorture norm in the United States.
2 Liberal-Democratic Torture
Answered and Unanswered Questions
The end of the Cold War was supposed to be the “end of history,” marked by the conclusive victory of liberalism over competing political ideologies (Fukuyama 1989). Democratic peace theorists seemed to grow in numbers just as fast as the democracies they studied in the 1990s, and these scholars gave readers reason to believe that peace and improved human rights would follow political freedom (Fukuyama 1989).1 Constructivism became a major player in international political theory at this time, too, founded on the idea that the anarchic world of international relations is not inherently or inevitably conflictual. Greater levels of cooperation could define new “cultures” of anarchy, and these arrangements could endure even if the benefits of defection from peaceful cohabitation temporarily outweighed the costs.2 The past twenty-five years have borne out many of these optimistic expectations. War is still unthinkable in Western Europe, despite warnings from realists.3 The recent spate of scholarship on the decline of war also shows that war and other forms of violence have been on the wane since the end of the Cold War.4
Yet torture persists, even in liberal democracies. Europeans turned to torture less than Americans did after 2001, producing real variation worth exploring and exploiting, but the recent European record has its blemishes, too. And while the U.S. Congress mandated that interrogations stick to the rapport-building methods of the Army Field Manual, future reversion to abuse is certainly conceivable (Jacobson 2017), especially in the aftermath of another 9/11-size attack.
Theoretically, explanations for the recurrence of torture fall partly in the blind spots of the two most prominent theoretical frameworks in international relations scholarship: rationalism and constructivism.5 Rationalists insist that states make choices based on self-interested cost-benefit analysis. Sometimes these choices fall in line with international norms (which can impose costs for noncompliance), and sometimes they do not. As a result, rationalism can account for the norm-breaking side of the puzzle but cannot
American Torture from the Philippines to Iraq. William L. d’Ambruoso, Oxford University Press. © Oxford University Press 2022. DOI: 10.1093/oso/9780197570326.003.0002
easily explain why states often do not act in their self-interest or do not update when the returns from torture are poor. Social constructivists argue that shared understandings, norms, and rules constitute states’ interests and identities, and so their choices are influenced, if not determined, by a sense of propriety, however thin. Hence constructivists are well-positioned to account for why states might not maximize their utility, but they would have more trouble explaining why states operate outside of a norm that is widely held. This puzzle takes rationalist and constructivist orientations out of their comfort zones.
Still, the international relations approaches are useful lenses for understanding the persistence of torture. While I draw primarily on constructivism, rationalism plays a part as well in both complementary and competing explanations. In some instances (e.g., the war on terror), torture was a foreign policy choice at the highest levels of government. In others (e.g., the Philippine-American War), torture resulted in part from closely related foreign policy choices by the higher-ups. Theoretical approaches to international relations can tell us whether these choices were the result of careful calculations (rationalism), a (perverse) sense of what is appropriate for a given context (constructivism), or some combination of these.
Some of the key actors and decision-makers are foot soldiers, both literally and figuratively. While they may not be elites, these actors are thinking about what war and anarchy require. They are grappling with the laws and norms of foreign war. As such, they confront classic questions and problems of international affairs, even if they do not hold high rank. International relations theorists are sometimes taken to task for spending too much time focusing on towering figures of government and ignoring how lower-level actors navigate international space. My study offers a partial corrective to this tendency.
This chapter sets out a definition for torture and also addresses the problem—one that I believe is serious enough to be part of my explanation for why torture occurs—of the gray area between torture and slightly less brutal deeds. With a working definition in hand, I then give a brief overview of liberal-democratic torture. Because I defend a relatively broad definition of torture, the history of torture by old, well-established democracies such as Britain, France, and the United States is more extensive than might be anticipated. I then offer some explanations of torture by democracies based on the existing literature and conclude with a discussion of some of the questions— why people believe torture works, why the norm against it hasn’t always
obtained, etc.—that current scholarship leaves inadequately answered. I develop theoretical answers to those questions in the next chapter.
Defining Torture, Including the “Lite” Stuff
One of my principal arguments is that torture occurs because people redefine torture to exclude things that they want to do. So it may seem strange that I will now state a definition of something that I am claiming is inherently vague, with arbitrary boundaries. Yet norms typically have some agreedupon terminology to which collective expectations can adhere, even if actors debate the terms’ meanings. I adopt the widely used definition from the Convention against Torture (CAT) (United Nations 1984), which defines torture as
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
The CAT, with 158 state parties, is the most salient, relevant example of antitorture norm codification.
Many of the psychologically abusive techniques favored by the CIA count as torture under the CAT definition. This includes the “regression” methods from the Cold War and “learned helplessness” from the war on terror. Methods sufficiently coercive to bring about a breakdown in personality and dignity qualify as acts causing “severe mental suffering.”
The definition is also compatible with many of the “stealth techniques”— torture that leaves no trace—which democratic actors (and, increasingly, nondemocratic ones) apparently prefer (Rejali 2007). The CAT’s definition does not stipulate that the pain and suffering must be long-lasting, as other definitions do. It does not require “organ failure . . . or even death,” as Bush administration lawyers did (Bybee 2002a, 1). (If interrogators are
really torturing for intelligence, the death of the subject would presumably be a failed outcome.)
Yet, holding the CAT definition aside for a moment, do stealth techniques, “torture lite,” “enhanced interrogation techniques,” or other methods with euphemistic monikers deserve the name “torture” as it is commonly understood? I argue that they usually do, for at least three reasons. First, many of the stealth techniques are worse than they sound, perhaps by design as a backup plan in case stealth fails. A volunteer in the French Foreign Legion described a technique in which detainees were forced to stand with one foot fixed to the ground: “Now, that doesn’t sound very terrible, does it? Yet, after half-an-hour of it, I have heard men screaming and raving” (quoted in Rejali 2007, 316). The waterboard was rhetorically reduced to a “dunk in the water” to “save lives,” which Vice President Dick Cheney agreed was so obviously the morally correct choice as to be a “no-brainer” (quoted in Eggen 2006).
Yet after Erich “Mancow” Muller, a conservative radio host, submitted himself to the waterboard to prove that it was not a big deal, he admitted, “It was instantaneous . . . and I don’t want to say this: absolutely torture” (Pollyea 2009).6
Second, the psychological damage can be long-lasting or permanent even if the visible, physical injuries are not. Christopher Hitchens, a journalist who submitted himself to the waterboard to give a firsthand account, reported nightmares of being smothered in the weeks that followed (Nizza 2008). Hitchens’s (2008) experience is in some respects a best-case scenario, given that he was in control of his fate, he had plenty of professional and personal support, and he was “released into happy daylight rather than returned to a darkened cell.”
We now know that the CIA’s war-on-terror interrogation program did lasting damage to detainees. Even under the Bush administration Justice Department’s narrow definition of psychological torture as techniques that would cause “significant psychological harm of significant duration, e.g., lasting for months or even years” (Bybee 2002a, 1), the “enhanced interrogation techniques” fail to elude the torture label. The New York Times ran a series of investigative reports in which it conducted over one hundred interviews with former detainees. It found no lack of stories like the following:
Today in Slovakia, Hussein al-Marfadi describes permanent headaches and disturbed sleep, plagued by memories of dogs inside a blackened jail.
In Kazakhstan, Lutfi bin Ali is haunted by nightmares of suffocating at the bottom of a well. In Libya, the radio from a passing car spurs rage in Majid Mokhtar Sasy al-Maghrebi, reminding him of the C.I.A. prison where earsplitting music was just one assault to his senses. (Apuzzo, Fink, and Risen 2016)
The Times series uncovered a lot of mental and physical health challenges, leading the authors to conclude that those who believed the mild nature of the program would bring only short-lived discomfort were simply wrong. Third, psychological damage can be greater with stealth techniques than physical methods in certain instances. James Ron’s (1997, 294–95) interview with a UN mental health officer dealing with cases of stealth torture shows why:
When prisoners had clear markings indicating they had been tortured, she explained, “the community understood why they broke down and implicated friends in real or imagined crimes.” When released prisoners had no signs proving what they had experienced, however, they could not explain why they broke down and supplied interrogators with names. “The associated feelings of shame, remorse, and guilt can cause severe mental trauma that would not have been experienced had the subjects been physically scarred,” she said.
The “severe mental trauma” mentioned by the UN worker sounds very similar to the CAT torture definition.
Mock executions, part of the stealth torturer’s repertoire, can be scarier than beatings because of their long-lasting psychological effects. John McCain (2005), a U.S. senator who was tortured as a POW in the Vietnam War, explains:
[I]f you gave people who have suffered abuse as prisoners a choice between a beating and a mock execution, many, including me, would choose a beating. The effects of most beatings heal. The memory of an execution will haunt someone for a very long time and damage his or her psyche in ways that may never heal. In my view, to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture.
