Comment by Sanford Levinson
Torture in Iraq & the rule of law in America
Doubts about the legal and moral
legitimacy of American interrogation
practices in the war on terror ½rst
emerged in regard to Afghanistan. In
January of 2003, Per esempio, The Econ-
omist published a remarkable set of arti-
cles on torture, detailing some of Amer-
ica’s more dubious practices. Yet as the
editors of The Economist noted, within
the United States itself the discussion of
torture was “desultory.”
That all changed in May of 2004,
when the cbs television program 60
Minutes and The New Yorker released pho-
tographs from the Abu Ghraib prison in
Iraq. These pictures provoked world-
wide outrage and, even more important-
ly, sparked a long overdue public debate
in the United States about torture and
the permissible limits of interrogation
in the aftermath of the September 11
attacks.
As one might expect in a legalistic cul-
ture such as ours, some of this debate
has revolved around the de½nition of
torture itself. Common lay understand-
ings of torture are in fact quite different
from those articulated by many Amer-
ican lawyers. One reason is that the U.S.
Sanford Levinson is W. St. John Garwood and W.
St. John Garwood, Jr. Centennial Chair in Law
and professor of government at the University of
Texas at Austin. He is the author of “Constitu-
tional Faith” (1988) and “Written in Stone”
(1998) and the editor of “Torture: A Collection”
(2004).
© 2004 dall'Accademia Americana delle Arti
& Scienze
Senate, when ratifying in 1994 IL
United Nations Convention Against
Torture and Other Cruel, Inhuman, O
Degrading Treatment or Punishment,
offered what one might call a more
‘interrogator-friendly’ de½nition of tor-
ture than that adopted by the un nego-
tiators. Thus the Senate, as is its preroga-
tive, stipulated while consenting to the
Convention that
the United States understands that, in or-
der to constitute torture, an act must be
speci½cally intended to inflict severe physical
or mental pain or suffering and that men-
tal pain or suffering refers to prolonged
mental harm caused by or resulting from:
the intentional infliction or threatened
infliction of severe physical pain or suffer-
ing; the administration or application, O
threatened administration or application,
of mind-altering substances or other pro-
cedures calculated to disrupt profoundly the
senses or personality; the threat of immi-
nent death; or the threat that another per-
son will imminently be subjected to death,
severe physical pain or suffering, or the
administration or application of mind-
altering substances or other procedures
calculated to disrupt profoundly the senses
or personality. (emphases added)
Each and every term I have italicized
here in the 1994 Senate resolution was
diligently parsed in the recently dis-
closed Pentagon “Working Group Re-
port on Detainee Interrogations in the
Global War on Terrorism,” submitted in
March of 2003 to Secretary of Defense
Donald Rumsfeld. Given the Senate’s
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Comment by
Sanford
Levinson
highly quali½ed endorsement of the un
Convention, it is not at all surprising
that the report submitted to Rumsfeld
appears to have maximized the scope of
authority (and power) allowed Ameri-
can interrogators who wish to operate
within the law.
The Pentagon report closely followed
an analysis submitted to White House
Counsel Alberto Gonzales in 2002 by the
Of½ce of Legal Counsel (olc) all'interno del
Justice Department. According to the
olc, “acts must be of an extreme nature
to rise to the level of torture . . . . Phys-
ical pain amounting to torture must be
equivalent in intensity to the pain ac-
companying serious physical injury,
such as organ failure, impairment of
bodily function, or even death.” The
infliction of anything less intense than
such extreme pain, according to Jay
Bybee, then head of the olc (and now a
federal judge on the Ninth Circuit Court
of Appeals), would not, technically
speaking, be torture at all. It would
merely be inhuman and degrading
treatment, a subject of little apparent
concern to the Bush administration’s
lawyers.
The current debate has sometimes
gone beyond terminological quibbles. In
the past few months, some experts have
forthrightly defended the propriety of
torture, however de½ned, at least in
some very limited situations. Harvard
Law professor Alan Dershowitz, who has
taken such a position, nonetheless is ex-
tremely concerned to minimize the use
of torture. He has, Perciò, vigorously
defended the idea that the executive
branch should be forced to go to inde-
pendent judges in order to obtain “tor-
ture warrants,” which could be issued
only after careful examination of execu-
tive branch arguments as to the ostensi-
ble necessity of torture in a given in-
stance.
Still other experts, including Dersho-
witz’s Harvard colleague Philip Hey-
mann and U.S. federal judge Richard
Posner, have disagreed, arguing that
such warrants would inevitably prove
chimerical as a genuine control and
would instead normalize torture as an
interrogational tool. Perhaps torture is
proper under very restricted circum-
stances, as Posner in particular agrees,
but far better that it be defended ex post
(after the fact) through speci½c claims
of necessity or self-defense than ex ante
(before the fact) through the issuing of
a warrant.
This debate has been informed both
by current events and, for some, by the
views of the men who drafted the U.S.
Constitution. On the one hand, there is
a growing sense (articulated by writers
like Philip Bobbitt) that war in the fu-
ture, at least where the United States is
concerned, is unlikely to ½t the tradi-
tional pattern of threats by states, and is
far more likely to involve threats from
organizations that have no capitals at
which traditional retaliation can be di-
rected.1 Rules and understandings devel-
oped to constrain the conduct of wars
between states–where, among other
things, mutual self-interest dictates lim-
its on what can be done even to one’s
enemies–may be inadequate or even,
as suggested by White House Counsel
Gonzales in a memorandum to the presi-
dent, “obsolete” in regard to the so-
called asymmetric warfare of the
twenty-½rst century. Such new modes
of warfare require that we rethink our
basic approach to waging war–and also
the basic principles of law and morality.
D'altra parte, it is equally impor-
tant to grasp just what the basic princi-
1 See Philip Bobbitt’s magisterial study, IL
Shield of Achilles: War, Peace, and the Course of
History (New York: Knopf, 2002).
6
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Torture in
Iraq & IL
rule of law
in America
ples of law and morality have been in the
stati Uniti. As recent work on the ori-
gins of the U.S. Constitution has demon-
strated, the founding fathers hoped to
create a government strong enough to
defend the fledgling nation against its
many potential enemies, including
European powers as well as Indian tribes
much closer to home.2 Among the key
provisions of the 1787 Constitution were
those authorizing a standing army and
effectively unlimited taxing authority
to Congress to pay for “the common
defense.”
James Madison and Alexander Hamil-
ton, for all their notable differences,
seemed to be in agreement on the im-
portance of this point. Thus Madison,
in Federalist No. 41, asked if it was “nec-
essary to give [the new government] an
indefinite power of raising troops,
as well as providing fleets; and of main-
taining both in peace as well as in
war?” He believed that the answer was
“so obvious and conclusive as scarcely
to justify” any real discussion of anti-
Federalist criticisms of the very idea of a
standing army. The United States had to
structure its own policies by anticipating
the likely actions of other states: "IL
means of security can only be regulated
by the means and the danger of attack.
They will, Infatti, be ever determined by
these rules and by no others.” Hamilton
expressed a related conviction in Federal-
ist No. 23: “[IO]t must be admitted as a
necessary consequence that there can be
no limitation of that authority which is to
provide for the defense and protection of
the community in any matter essential
2 See particularly David C. Hendrickson, Peace
Pact: The Lost World of the American Founding
(Lawrence: University of Kansas Press, 2003);
and Max M. Edling, A Revolution in Favor of Gov-
ernment: Origins of the U.S. Constitution and the
Making of the American State (Oxford: Oxford
Stampa universitaria, 2003).
to its ef½cacy–that is, in any matter
essential to the formulation, direction, O
support of the national forces” (½rst
emphasis added). Thomas Hobbes could
have done no better in defending the
absolute authority of the sovereign.
The Constitution may proclaim that
sovereignty rests with “We the People.”
But the implication of both Madison’s
and Hamilton’s arguments is that, prac-
tically speaking, at least in times of war,
sovereignty really rests with a handful of
government of½cials–not with “the
People.”
Now consider the following maxim:
“There exists no norm that is applicable
to chaos.” It comes not from Madison
or Hamilton, but from Carl Schmitt, IL
leading German philosopher of law dur-
ing the Nazi period. Schmitt contended
that legal norms were only applicable in
stable and peaceful situations–and not
in times of war, when the state confront-
ed “a mortal enemy, with the threat of
violent death at the hands of a hostile
group.” It follows that conventional le-
gal norms are no longer applicable in a
state of emergency, when war and chaos
pose a standing threat to public safety.
To adopt the language of American con-
stitutional law, every norm is subject to
limitation when a compelling interest is
successfully asserted, and it is hard to
think of a more compelling interest than
the prevention of violent death at the
hands of a hostile group.
But what this means is that one can
never have con½dence that any particu-
lar constitutional norm–beyond that of
preserving the state itself–will be ad-
hered to. Any attempts within the Con-
stitution to tie the government’s hands
with regard to defending the nation,
Poi, may be mere “parchment barri-
ers,” to use Madison’s dismissive term
(which he conceived during the period
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Comment by
Sanford
Levinson
when he doubted the wisdom of adding
a Bill of Rights to the Constitution).
Both Madison and Schmitt suggest,
Poi, the most likely response to such
barriers is a “necessary usurpation of
power” (as Madison put it in Federalist
No. 41; emphasis added).
Schmitt, described by Herbert Mar-
cuse as the most brilliant Nazi theorist,
may have much to tell us about the legal
world within which we live and, even
more certainly, seem to be careening.
Although some analysts have suggested
that the Bush administration has operat-
ed under the guidance of the ideas of
German émigré Leo Strauss, it seems far
more plausible to suggest that the true
éminence grise of the administration, par-
ticularly with regard to issues surround-
ing the possible propriety of torture, È
Schmitt.
settembre 11, it is said, changed every-
thing. What this means, among other
things, is that for many the existing
world of ‘the normal’ vanished in an
instant, to be replaced by the specter of
terrorist groups armed with weapons of
mass destruction. And what this means
is that pre–September 11 norms and ex-
pectations are being recon½gured in
terms of this new ‘normality’ of endless,
frightening threats posed by ‘a mortal
enemy.’ Ordinary norms–whether the
assumption that anyone arrested by
American police will have an opportu-
nity to consult with a lawyer, or the as-
sumption that the United States will be
faithful to its public pronouncements
denouncing torture (as well as to its
commitment under the un Convention
absolutely to refrain from torture what-
ever the circumstances)–are now up for
grabs. “Sovereign is he,” wrote Schmitt,
“who decides on the state of the excep-
zione,” or, much the same, who is allowed
to redescribe what is ‘normal.’
Administration lawyers whose memo-
randa have only recently been disclosed
seem completely willing to view George
W. Bush as the de facto sovereign. Their
documents display what can only be
called contempt not only for interna-
tional law, but also for the very idea that
any other institution of the American
government, whether Congress or the
Judiciary, has any role to play. Thus both
the Working Group Report submitted to
Secretary Rumsfeld and the memoran-
dum prepared earlier by the olc argued
that the Constitution’s designation of
the president as commander in chief
means that “the President enjoys com-
plete discretion . . . in conducting opera-
tions against hostile forces” (emphasis
added). Complete discretion, Ovviamente,
is a power enjoyed only by sovereigns.
Non-sovereigns, by de½nition, are sub-
ject to the constraint of some overriding
authority. The president, secondo
administration lawyers, has no authority
to which he must answer. Prohibitions
of international and domestic law re-
garding the absolute impropriety of tor-
ture simply do not apply to him. “In or-
der to respect the President’s inherent
constitutional authority to manage a
military campaign, [federal laws against
torture] must be construed as inapplica-
ble to interrogations undertaken pur-
suant to his Commander-in-Chief au-
thority,” the olc advised. “Congress
lacks authority . . . to set the terms and
conditions under which the President
may exercise his authority as Comman-
der-in-Chief to control the conduct of
operations during a war.”
It is impossible to predict whether
these quite astonishing arguments
(which seem to authorize the president
and designated subordinates simply to
make disappear those they deem adver-
saries, as happened in Chile and Argenti-
na in what the Argentines aptly labeled
their “dirty war”) would prevail before a
court of law. We shall know more after
8
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the Supreme Court rules in several cases
it heard in the spring of 2004 regarding
the detention in Guantanamo of foreign
combatants and at least one American
citizen (Jose Padilla, who has been ac-
corded almost no legal rights since his
2002 arrest at O’Hare International Air-
port).
Far more important, Tuttavia, is the
articulation, on behalf of the Bush ad-
ministration, of a view of presidential
authority that is all too close to the pow-
er that Schmitt was willing to accord his
own Führer.
One temptation is to stop right here,
especially if one shares my own doubts
about both George W. Bush and the war
in Iraq. But that would be too easy, for a
number of reasons. One is that there are
mortal enemies of the United States who
do threaten violent death. No political
leader could suggest that it is not a com-
pelling interest to prevent future replica-
tions of September 11. Inoltre, as al-
ready indicated, one can cite not only
the egregious (though brilliant) Schmitt,
but also such American icons as Madi-
son and Hamilton for views that are not
really so completely different from those
enunciated by the Bush administration.
And so we already have many well-
credentialed lawyers, several of them
distinguished legal academics, who are
quick to defend everything that is being
done (or proposed) by the Bush admin-
istration as passing constitutional mus-
ter. They have enlisted in defending a
war on terror that is almost certainly of
in½nite duration. They appear recklessly
indifferent to the fact that their argu-
menti, if accepted, would transform the
United States into at least a soft version
Di 1984, where our own version of Big
Brother will declare to us who is our en-
emy du jour and assert his own version of
a “triumph of the will” to do everything
and anything–including torture–in
order to prevail.
Torture in
Iraq & IL
rule of law
in America
A ½nal quotation from Carl Schmitt is
illuminating: “A normal situation has to
be created, and sovereign is he who de-
½nitively decides whether this normal
state actually obtains. All law is ‘situa-
tion law.’ The sovereign creates and
guarantees the situation as a whole in
its totality. He has the monopoly on this
ultimate decision.” This is precisely the
argument being made by lawyers within
the Bush administration.
The debate about torture is only one
relatively small part of a far more pro-
found debate that we should be having
during this most important of election
years. Do “We the People,” the ostensi-
ble sovereigns within the American sys-
tem of government, accept the vision of
the American president articulated by
the Bush administration? And if we do,
what, Poi, is left of the vaunted vision
of the rule of law that the United States
ostensibly exempli½es?
– June 21, 2004
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