of 9/11.”5 By the autumn of the same year, Kenneth Clarke, the new minister of justice, told parliament that an out-of-court settlement had been reached. He argued that if the case had continued, “Our reputation as a country that believes in human rights, justice, fairness and the rule of law … risks being tarnished.”6 Clarke added that no admission of liability had been made and that the details of the settlement were to remain confidential. The following day, the director of public prosecutions announced that the MI5 officer investigated for complicity with Mohamed’s ill-treatment in Pakistan and Morocco would not be prosecuted.
Since 2001, images of tortured bodies and the claims and counterclaims they generate have shaped much international politics. Binyam Mohamed’s case was just one among many. Probably the most infamous incident involved the release of pictures of American troops mistreating Iraqi detainees in Abu Ghraib prison. After the release of these photographs, there were further revelations about ill-treatment by the US military in Guantanamo and Bagram, as well as the use of secret detention centers and “extraordinary rendition” to places where torture was, in effect, outsourced. In the United Kingdom, the photographs from Abu Ghraib have also been overlaid by several subsequent events. Six months after the invasion of Iraq, British soldiers used stress positions and beatings on Iraqi detainees, resulting in the death of one man and the hospitalization of others. A few years later, photographs were released showing British soldiers forcing Iraqi detainees to simulate oral and anal sex. In another story, which was later revealed to be a hoax, a British newspaper published photographs apparently showing soldiers carrying out mock executions of Iraqi detainees.7 As well as the claims made by Binyam Mohamed, other allegations were made about the complicity of MI5 and MI6 in torture carried out by Pakistan and Egypt, among other countries. Further controversies arose over the use of British airspace in the “extraordinary rendition” of detainees to places outside the protection of the law. The list of examples could go on.
Torture is a word with immense ethical, political, and cultural power, seeming to encompass all that is wrong with arbitrary and excessive power. It has become seen as close to the very worst thing that can happen to someone or that one person can do to another. One respected commentator has even argued that it is worse than all forms of killing (Shue 2004). Many people would concur. Some may disagree over the definition of torture, but in doing so they are not challenging the privileged status of torture as a form of suffering and cruelty above nearly all others. To be sure, the moral objection to torture is not universal. However, torture is still not something that many people will openly admit to doing. Perpetrators will dress up their acts in euphemisms, deny that what they have done counts as torture, or dance around the edge of definitional debates. Torture remains beyond the pale, in words if not in deeds. It is not a term that is going to be given a positive spin any time soon. Even those who would condone the use of torture in very specific circumstances say they do so with heavy hearts (see, for example, Elshtain 2004). From this perspective, torture is still very wrong but just not quite as wrong as other things.
Current debates about torture are saturated with law. In the United States, lawyers were involved in writing memos that justified nearly every aspect of military and CIA interrogation programs. Since the memos were made public, there have been numerous court cases concerning the treatment of detainees. In the United Kingdom, the meanings and implications of torture have been thrashed out in a number of legal and quasi-legal forums. The extensive litigation around Binyam Mohamed was just one of several cases. Conflicts have ranged over the protections owed to torture survivors, the responsibilities of those complicit in the perpetration of torture, and the United Kingdom’s international human rights obligations. These disputes have taken place in court-martials, judicial inquiries, immigration cases, reports before UN monitoring mechanisms, appearances before the European Court of Human Rights, and in domestic civil litigation, among others. Legal forums have entered deep into the political arena, as judges have been asked to adjudicate on some of the most contentious contemporary concerns. Not only have judges become heavily politicized in this process, but politics has become judicialized.
We are increasingly accustomed to thinking about responses to cruelty and violence in terms of the legal category of torture. However, this has not always been the case. It is only since the late twentieth century that torture has been associated with precise legal definitions and thought of as a specific human rights violation above nearly all others. Over the last three hundred years, the meanings ascribed to torture have changed from a legitimate judicial procedure to elicit the truth, to be seen as the very worst infraction of the physical, psychological and moral integrity of human beings. Our current understandings of torture are a product of ongoing struggles between nongovernmental organizations (NGOs), governments, and international organizations, as concerns over post cold war armed conflict, medical notions of trauma, and concerns about immigration have all come together.
To stress the historical contingency of the legal category of torture is not to say that people do not act cruelly, and that people do not suffer. Rather, it is to ask why this person’s suffering and not that of the next is taken into account, why this form of pain and not another is deemed significant, and why this action and not another is recognized as torture. The point is not to trivialize the suffering of torture survivors nor to denigrate the effort of all those who work against torture. Neither is it to relativize torture or to deconstruct it into thin air. At its heart, the concept of torture contains a crucial ethical concept: People should not be treated cruelly and the deliberate infliction of pain is something that should be avoided at (nearly) all costs. It is also important to recognize that the fight against torture can serve as an important “tool in the demand for justice” (Fassin and Rechtman 2009, 279). The struggle to prohibit torture has made a real difference to people’s lives around the world. However, it is important to note that our concepts of torture do not include all possible harms and that legal processes do more than neutrally recognize when torture takes place. They determine what acts count as torture and how we should respond.
This book asks what can be seen and said, and what has to be ignored, when we understand suffering and cruelty through the legal category of torture. In doing so, it treats torture as, above all, a problem of recognition. One of the dominant cultural images of the torture survivor is a body wracked by pain, crying out in anguish, unable to express what has happened to him or her (Scarry 1988). However, the problem of recognition is not caused by the inability of the survivor to communicate. Binyam Mohamed, for example, could give long, articulate statements about his treatment in detention.8 The issue is, instead, one of our ability to listen, to see, to name, and to take responsibility for what is in front of us. The key question is therefore what types of victim and perpetrator, what forms of innocence and guilt, do legal understandings of torture allow us to acknowledge?
Whereas most recent books on torture have focused on why it happens, the ethics of the prohibition of torture, or the effects of torture on its victims, I will examine empirically how real or supposed instances of torture are constructed, debated, questioned, and brought into focus. Much analytical ink has been spilled in trying to define the ethical and legal boundaries of what does and does not count as torture.9 The topic was given an added urgency by the attempts of the George W. Bush administration to redefine where the line between acceptable and unacceptable treatment of detainees lay. But torture is not simply an abstract category to be debated in terms of broad principles. The issue is not merely about choosing between competing legal or ethical norms but about deciding how and whether those norms apply to any given situation. It is not simply about setting out the rules clearly but about making a judgment about how and whether those rules apply in specific contexts (compare Anderson 2011). It is therefore important to examine the concrete dilemmas and difficulties involved in documenting and recognizing when torture has taken place. If, as Stanford Levinson has argued, “Torture as a term is a place holder—an abstract word made concrete by the imagination of the reader” (2004, 27), it is through the everyday practices of the lawyers, judges, doctors, psychologists, and bureaucrats charged with documentation and recognition that the implications of what is and what is not torture are produced.
The central argument of this book is that although the legal category of
