Friday, June 30, 2017
John T. Parry (Lewis & Clark Law School) has posted States of Torture: Debating the Future of Coercive Interrogation (Tennessee Law Review, Vol. 84, No. 3, 2017) on SSRN. Here is the abstract:
Soon after the 9/11 attacks, some policymakers, commentators, and academics began to debate the propriety of coercive interrogation. Those debates were soon overtaken by the Bush administration's coercive interrogation policy. As the details of that policy became known, many participants in the torture debate understandably believed that they could claim the high ground and ensure that, going forward, the United States would be irrevocably an anti-torture nation. The election of Barack Obama appeared to buttress those efforts. And yet, today, more than 15 years since the 9/11 attacks and the beginning of the torture debate, coercive interrogation has become an issue on which apparently mainstream political figures can have opposing views. Instead of bipartisan condemnation, coercion is now a partisan political issue with broad public support. President Trump openly endorsed coercion in his successful campaign.
This essay, written for a symposium in the Tennessee Law Review, explores some of the persisting issues in the debate over coercive interrogation. It first describes how torture moved from the margins to the center of American political discourse and apparently became accepted as a topic about which reasonable people could hold opposing views. Next, the essay goes back over the legal regulation of torture to show, first, the broad condemnation of "torture" as a matter of law but also, second, some of the ambiguities, uncertainties, and enforcement gaps that also exist. The essay also insists on confronting the ambiguous record of the United States with respect to torture.
Finally, the essay asserts that the discussion of torture, and particularly the repeated assertions that coercion is a legitimate policy option, is itself a form of practice. In other words, by talking so much about torture, policymakers have confirmed the United States as a torture nation, a country whose identity includes the open use of coercion. The essay concludes by offering suggestions about what a meaningful torture debate would actually look like, insists that torture proponents must take responsibility for the consequences of their assertions, and expresses qualified optimism about the ability of torture opponents to win -- or at least not to lose -- the torture debate.