Rights at risk: why the right not to be tortured is important to you

Published date02 September 2009
Date02 September 2009
AuthorLisa Hajjar
Lisa Hajjar
A volume on the subject of ‘‘revisiting rights’’ offers a welcomed opportunity
to ref‌lect on my own claims about rights, especially the unique importance of
the right not to be tortured. This right has been the subject of constant
debate since 9/11, and even more so since mid-2004 when it was revealedthat
the Bush administration had ‘‘legalized’’ and utilized tactics that constitute
torture and ill-treatment in the interrogation of people taken into custody in
the ‘‘war on terror.’’ The global power of the United States makes American
torture more deleterious than torture by less powerful regimes because of its
capacity to inf‌luence international legal norms and standardsfor the rights of
prisoners (Hajjar, 2006). Moreover, because of the reliance on the torturing
services of other regimes (e.g., Egypt, Syria, Morocco) as a feature of the
Central Intelligence Agency’s (CIA’s) ‘‘extraordinary rendition’’ program,
the United States was invested in the perpetuation of worse forms of torture
elsewhere (Mayer, 2005). There are, however, certain‘‘benef‌its’’ – in the form
of unintended consequences – that derive from the fact that the US
government claimed for itself a right to torture, which I elaborate in the last
section of this chapter.
The right not to be tortured equals the prohibition of torture, which poses
a clear limit to what state agents can do to people who are in custody– unfree
to f‌ight back or protect themselves andimperiled by that incapacitation – but
Revisiting Rights
Studies in Law, Politics, and Society, Volume 48, 93–120
Copyright r2009 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000048007
have not been found guilty of a crime. Any serious challenge to the legal and
normative basis of the right not to be tortured is a rejection of the principle
that state behavior can be limited by law, and this puts the rule of law, and
thus rights writ large at risk. In this chapter, I explain why the right not to be
tortured remains so importantand why its violation, especially by the world’s
lone superpower, is so dangerous.
Torture has been practiced for millennia, albeit the means, rationales, and
objectives have changed. (For an extended discussion of torture’s past, see
Hajjar, 2009.) Starting in the 12th century, the rediscovery of Roman law in
western Europe revived torture as an aspect of criminal legal processes, both
ecclesiastical and secular. According to Edward Peters (1996, p. 41), ‘‘the
inquisitorial procedure displaced the older accusatorial procedure. Instead of
the conf‌irmed and verif‌ied freeman’s oath, confession was elevated to the top
of the hierarchy of proofsy[T]he place of confession in legal procedurey
explains the reappearance of torture in medieval and early modern law.’’
In the late 18th century, European governments began reforming national
laws to abolish judicial torture as a means of gathering evidence and eliciting
confessions, due to a combination of factors including changes in criminal
procedure (Langbein, 2006), and a growing skepticism that pain was a good
way to produce truth (DuBois, 1991) or was effective in governing well
(Foucault, 1977). This legal abolition occurred in conjunction with the
disallowance of some of the crueler forms of sanguinary punishment (i.e.,
penal torture) that cause protracted suffering and bodily disf‌igurement. In
US law, the idea of forbidding torture traces back to the founding of the
republic and was enshrined in the Constitution through the 8th Amendment
prohibiting ‘‘cruel and unusual punishment.’’ Along with habeas corpus and
the separation of powers, the ban on unconstitutional cruel treatment served
as a foundation of the modern rule of law because it was understood as
essential for conditions of human dignity, liberty, limited government, and
due process to thrive.
But in the 20th century, torture achieved a second revival. Militaries,
security services and police forces instrumentaliz ed torture to gather informa-
tion and defeat ‘‘enemies’’ of one kind or another who were presumed to
menace the security and power of the state. As Peters (1996, pp. 6–7) explains:
Much of modern political history consists of extraordinary situations that twentieth-
century governments have imagined themselves to face and the extraordinary measures

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