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

• Published date: 02 September 2009
• Pages: 93-120
• Date: 02 September 2009
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000048007
• Author: Lisa Hajjar

RIGHTS AT RISK: WHY THE

RIGHT NOT TO BE TORTURED

IS IMPORTANT TO YOU

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

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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.

TORQUEMADA’S GHOST

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

LISA HAJJAR94