The war on terror and the battle for the definition of torture

Transcription

1 587775IRE / International RelationsBarnes research-article2015 Article The war on terror and the battle for the definition of torture International Relations 2016, Vol. 30(1) The Author(s) 2015 Reprints and permissions: sagepub.co.uk/journalspermissions.nav DOI: / ire.sagepub.com Jamal Barnes Murdoch University Abstract The use of torture by the Bush administration has raised important questions regarding the strength of the torture taboo. Did US torture signal a regress of the torture prohibition? This article examines the attempts by the United States to re-define torture to better reflect its interests. However, rather than seeing this as a case of norm regression, I show how the United States failed in its revisionist attempts to legitimise its interpretation of torture in international society. The torture taboo remained resilient to US challenges, demonstrating not only the difficulty of norm revisionism but also the robustness of the torture taboo. Keywords constructivism, morality, norm revisionism, norm resilience, norms, re-defining torture, the war on terror, torture, torture taboo Introduction The absolute prohibition against torture is a jus cogens 1 international norm that is observed widely under international human rights and humanitarian law. 2 Yet, revelations that the Bush administration employed waterboarding, stress positions, wall standing and exposure to loud music during interrogations in the war on terror have raised questions over the robustness of the torture taboo in world politics. Does the torture taboo matter during times of security crises? Or did US torture mark the slow death of the torture prohibition? 3 It is well known that violations of norms 4 do not necessarily mean they do not matter. 5 Further questions need to be asked to assess the robustness of a norm: what was the Corresponding author: Jamal Barnes, Murdoch University, 90 South Street, Murdoch, WA 6150, Australia. J.Barnes@murdoch.edu.au

2 Barnes 103 domestic and international response to US torture? What justifications were given for its use? Was torture denied and carried out in secret or openly justified as the right thing to do? And did the United States influence the understanding of torture in international society? While not denying US torture harmed the torture prohibition, 6 this article argues studying the use of US counter-resistance and enhanced interrogation techniques can demonstrate the strength of the norm s legitimacy, not its regression. 7 Employing a social constructivist approach, 8 I argue even though the torture prohibition was violated by the Bush administration, the norm continued to shape the administration s behaviour, and constitute its interests and identity. 9 The United States sought to re-define and limit what practices constituted torture under international law by defining torture as constituting extreme forms of pain and suffering. Re-defining practices such as waterboarding as enhanced interrogation was an attempt to reconcile modern sensibilities of pain and suffering with unnecessary violence. 10 It removed the negative connotations associated with torture such as cruelty, abuse of power and superfluous suffering and brought it within civilised and necessary conduct. Although this re-definition may be dismissed as rhetoric, it has important implications for demonstrating the strength of the torture taboo. First, the US attempt to revise the torture prohibition not only demonstrates that a norm exists, 11 but it actually reinforced the absolute prohibition against torture, with the United States continuing to place limits on its behaviour. And second, the attempted norm revisionism shows the resilience of the torture taboo, not its fragility. US torture was widely condemned, both domestically and internationally. Despite being the last global superpower, the United States could not legitimise its norm revisions within international society as materially weaker actors were able to challenge the US definition of torture, eventually defeating it. This case study offers a unique insight into how norms shape state behaviour in often unexpected ways, how norms constitute interests and identities and the relationship between power and morality in international society. Norm revisionism, and normative change, is a difficult practice to undertake because actors have to legitimise their revisions to others. Actors cannot define norms however they like, no matter how powerful the actor. Rather, norms are constructed through an inter-subjective framework of meaning that is often difficult to challenge and re-define. Legitimacy matters in international society, and the legitimacy of norms has the potential to regulate actors in world politics. 12 Both a logic of consequences and appropriateness 13 operated on the United States, with the Bush administration continuing to set moral limits on its behaviour during the war on terror. I begin this article by examining why torture is deemed inappropriate behaviour and why it is useful to think of the torture prohibition as a taboo. The second and third sections outline how the Bush administration s failed revisionism shows why the taboo is not in regression, and how one can understand its resilience. The fourth section traces the evolution of the definition of torture under international law. Although this story has been told by international law scholars, 14 it has been neglected in International Relations (IR) scholarship. I show over the last several decades how the battle over torture s definition has revolved around whether to define torture in relation to the severity of pain inflicted, or by the purpose of the act. The fifth section explores how the Bush

3 104 International Relations 30(1) administration selectively interpreted international law to re-define torture to better reflect its interests. The sixth section examines how the Bush administration s revisionist project was defeated as it could not legitimise its interpretations to domestic or international audiences. I conclude by summarising the importance this argument has for the torture taboo itself, for normative International Relations theory and the measures that can be taken to prevent further manipulation of the torture taboo in the future. The torture taboo Since the time of the Greek city states, torture has been deemed a legitimate practice to gather the truth in criminal trials. 15 However, by the eighteenth century, torture was abolished, 16 and today, torture is one of the few practices prohibited absolutely in international society. States are not allowed to refouler, or return, individuals to countries where there is a risk they could be tortured, and torture is a crime of universal jurisdiction. 17 To understand the torture prohibition s strength, I have drawn upon the anthropological literature and defined it as a taboo. A taboo is a potent prohibition understood as something that is not done, said, or touched. 18 For Steiner, a taboo deals with the sociology of danger taboo is an element of all those situations in which attitudes to values are expressed in terms of danger behaviour. 19 Understanding torture as immoral and illegal but also dangerous can help explain why torture differs from other forms of pain and suffering. Not all pain and suffering is torture, nor is all pain and suffering illegal or immoral. We inflict pain upon one another in sporting games, police can legitimately use force to quell a riot and adults can inflict pain upon one another in consensual sexual acts. 20 One of the functions of a taboo is to localise danger and identify transgressions. 21 In the context of torture, this means narrowing, or localising, the danger that can come from particular types of pain and suffering, and separate it from non-dangerous forms of pain. Until the parameters of the taboo can be defined, society cannot identify dangerous forms of pain and suffering. By narrowing certain types of pain and suffering as dangerous, taboos help in protecting a vision of the good community. 22 In relation to the torture taboo, this vision does not define the good as such; rather, the torture prohibition contributes to the good life by defining what is bad. Torture attacks the defenceless, 23 it forces the victim to collude against himself or herself 24 and it undermines individual rights embedded in social institutions. 25 In short, torture destroys our humanity and what it means to be human. 26 Torture does not just harm the victim; the sociology of danger comes from the fact that violating the taboo has a contagion effect that harms social institutions and dehumanises 27 and stigmatises the torturer as uncivilised or barbaric. In doing so, the torture taboo not only has a regulative effect (prohibiting torture absolutely) but plays a constitutive role in shaping identities and ranking states 28 in international society: those who abide by the norm are civilised, while those who violate it are deemed uncivilised. To be a full member of international society, states have obligations not to unnecessarily harm others and uphold the absolute prohibition against torture. The damage torture s stigma has on a state s identity and ethical standing 29 helps explain why states hide and deny their torture, 30 torture without leaving marks 31 or, in the case of the United States, re-define torture as something else. As Amnesty International has argued:

4 Barnes 105 Given that the word torture conveys an idea repugnant to humanity, there is a strong tendency by torturers to call it by another name, such as interrogation in depth or civic therapy and a tendency of victims to use the word too broadly. 32 This is particularly relevant for US torture because the Bush administration denied using torture, hid it from sight and re-defined certain practices as enhanced interrogation. Because not all pain and suffering is taboo, the administration argued some pain could be inflicted up to a certain point, and this pain was both legitimate and within civilised conduct. The Bush administration refused to endorse torture or challenge the absolute prohibition against torture 33 because it knew torture was illegitimate behaviour and therefore could not be done or spoken about. It is here we see the continued strength of the torture prohibition: despite further potential terrorist attacks against the United States, the United States could go to war and declare the right to kill terrorist group leaders, but it could not justify torturing them. A taboo in regression? This argument raises doubt over claims that the torture taboo is in regression. McKeown has argued US torture has contributed to a reverse cascade of the torture prohibition. According to McKeown, the slow death of the torture norm means norm revisionists have won the day 34 as torture has become a normalised practice that has generated a domestic legitimacy crisis of the norm and threatens a possible international legitimacy crisis as states emulate US practice. 35 The United States created a pro-torture culture 36 that promoted an us vs them mentality between the United States and terrorist groups, removed Geneva protections from terrorist suspects and re-defined torture. This reverse cascade opened the door for arguments for torture to a point where torture has become an accepted practice within the United States. If McKeown is correct, this has profound implications for the taboo. Not only will the torture prohibition be in regression, but it demonstrates the ability of powerful states to shape norms to reflect their interests and highlights the fragility of normative change in world politics. 37 I do not deny US torture harmed the torture prohibition (for any violation of the prohibition damages it). However, I argue McKeown s claims are overblown. The United States did not try to exempt itself from the absolute prohibition but minimise the types of practices that came within the taboo s protection. US revisionism was a fight about rules, 38 or what constituted torture and how to separate legitimate infliction of pain from dangerous forms of pain and suffering. By focusing on the political processes by which the Bush administration tried to narrow the scope of the taboo, we can understand the robustness of the taboo by examining how the taboo shaped US interests, identity and actions. Understanding what torture is and how to differentiate torture from other painful practices is not an easy task. The line between legitimate and illegitimate pain and suffering is often blurred. 39 However, this blurred boundary does not mean anything goes. The United States has the capacity to shape norms, but it is also embedded in social relationships and norms in international society. 40 This reflexive relationship means the capacity for the United States to re-define norms is limited by the fact that revisions

5 106 International Relations 30(1) must be consistent with inter-subjective beliefs and values in international society. If normative revisions are consistent with principles or laws (or shared notions of oughtness or rightness 41 ), an audience may accept the revisions. If not, the revisions may be rejected. Since part of legitimation strategies is to justify and legitimise one s identity and interests to an audience, 42 any legitimation strategy that tries to justify policies that undermine these inter-subjective beliefs can have negative repercussions on that actor s identity. This is why McKeown s emphasis on the United States secretive challenge to the torture norm 43 to support the idea that the torture prohibition is in regression does not adequately take into account the importance of the United States inability to publicly challenge the prohibition. The United States knew it could not openly challenge the taboo and employ torture to fight terrorism because the torture taboo still had strong legitimacy in international society. This is why the military branded their techniques counter-resistance techniques and the Central Intelligence Agency (CIA) labelled theirs enhanced interrogations. Challenging the torture taboo would have challenged US identity as a humane state. It is important to note that the US interpretation of torture went beyond pandering to domestic and international audiences. In internal memorandums that were not for public consumption, one finds the taboo played an important role in shaping US interests and identities. The decision to suspend Geneva protections for terrorism detainees and redefine torture sparked a debate within administration circles about the strategic and moral implications of going down that path. Concerns were raised over the consequences this policy would have in maintaining public support for the war on terror, and the negative impacts it would have on US character. By showing that the taboo shaped US interests and identity behind closed doors, it allows one to see the attempted revisionism was deeper than public rhetoric. Yet, this also challenges realist accounts of US torture. A realist account would possibly argue the United States was pulled by the forces of necessity, resorting to torture to save American lives from further terrorist attacks. 44 Although I do not discount realist insights, focusing on the forces of necessity ignores the continued role of the torture taboo. Within internal discussions, one continues to see the compliance pull 45 of the torture taboo on administration officials. If harsh interrogation techniques were seen to be in US interests, and the Bush administration had successfully normalised torture within the United States, it is unclear what was holding the administration back in openly proclaiming the right to torture to save lives or why the United States placed limits on its conduct. This counterfactual allows one to see how the taboo continued to shape US interests, actions and identity. But it also demonstrates how the taboo remained resilient under attempted US revisionism. A resilient taboo If the last remaining superpower cannot challenge the taboo, it suggests the relationship for powerful states to shape morality in their interests is complex and restricted. Constructivists have shown the strength of norms by showing how norms have constrained states from violating a norm even if it was in their interest to do so. 46 However,

6 Barnes 107 examining a failed case of norm revisionism can also help measure the strength of a norm by demonstrating its resilience and resistance to change. Crawford argues normative change is difficult because revisionists must persuade others to overcome practical barriers to change (such as institutionalisation) and normative concerns (such as the belief that the old practice is good ). 47 The torture taboo s strong normative tradition, non-derogable status and its institutionalisation under international law placed a barrier in front of the United States that prevented it from openly challenging the taboo. The United States therefore had to resort to persuading others to rethink their beliefs about what constitutes torture while continuing to proclaim to be upholding the taboo. This revisionist strategy failed to convince others and eventually led to its defeat. So how was the US interpretation of torture defeated? Constructivists have examined the role arguing, hypocrisy and social sanctions play in generating norm development and norm conformity. 48 A key target for critics was the tension within the US narrative that counter-resistance and enhanced interrogation techniques were harmful yet humane. This tension was created by the fact the United States was speaking to two audiences at once. 49 On the one hand was the international community, who had to be persuaded the interrogation practices were consistent with human rights norms. On the other hand were the terrorists, who the United States was trying to scare or intimidate with coercive interrogation techniques. In arguing these coercive interrogations constituted torture, critics were able to exploit this tension by exposing the hypocrisy of the United States as a state that claims to uphold human rights while simultaneously violating them. The power of critics arguments came from their ability to produce knowledge. International institutions and the production of knowledge often have autonomy from the interests of states that created them. 50 International institutions exercise power by creating categories, fixing meanings and diffusing norms. 51 Because classifications are world-making, they organise both perception of the social world and the world itself. 52 The capacity for international institutions, courts and other actors (such as non-governmental organisations (NGOs)) to produce knowledge has been integral in constructing the definition of torture under international law. This is especially the case under the European Commission on Human Rights, the European Court of Human Rights (ECHR) and the United Nations (UN). As one will see, there is no real definition of torture. Rather, torture s definition is an on-going social construction. Defining torture in international society How has international society narrowed the danger that can come from pain and suffering? If there is no real definition of torture, how do we know torture when we see it? The battle over the definition of torture has been over how to demarcate dangerous pain and suffering ( taboo forms of pain and suffering) from legitimate pain and suffering that can be inflicted by the state. An important site in which this debate has taken place has been in the European Commission on Human Rights and the European Court of Human Rights (ECHR). Article 3 of the European Convention on Human Rights reads, No one shall be subjected to torture or to inhuman or degrading treatment or punishment. When the

7 108 International Relations 30(1) European Commission first ruled on a case of torture in 1969, the Commission argued that severity of pain distinguishes prohibited from legitimate infliction of pain. 53 However, when distinguishing torture from inhuman and degrading treatment (IDT), the Commission argued torture is an aggravated form of IDT that must have a purpose (to gain information, confessions or to punish). 54 The purpose of the act, was the key distinguishing feature between torture and IDT. 55 It was by using this categorisation that the European Commission found the United Kingdom guilty of torture in 1976 (the Ireland Case) for using what became known as the five techniques on Irish Republican Army (IRA) suspects in Ireland in These individuals were subjected to wall standing (forced to stand spread eagled against a wall for hours at a time), hooding, loud hissing noises, sleep deprivation and a reduced diet of food and drink. 57 The Commission found these practices went beyond a certain roughness of treatment, which is deemed neither cruel nor excessive, 58 and, carried out in combination, constituted IDT and torture. However, when Ireland took the case to the ECHR on 10 March 1976, the Court disagreed with the Commission. 59 In making its judgement, the Court separated torture from IDT by focusing on the severity of pain inflicted, not the purpose of the act. The Court argued torture has attached a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. 60 Because the five techniques did not result in an intensity and cruelty implied by the word torture, 61 the Court found the practices constituted IDT but not torture. This was a controversial decision criticised by dissenting judges, 62 human rights groups 63 and legal scholars. 64 These critics argued relying on severity of pain to determine torture did not take into account modern techniques of oppression 65 that often do not involve physically inflicting pain. The purpose of the act should be used to determine whether torture has taken place for more physically brutal acts can be inflicted to harm individuals but may not be torture. 66 This is similar to the approach taken by the Inter-American Commission and Inter-American Court of Human Rights. Article 2 of the Inter-American Convention to Prevent and Punish Torture removes any mention of the need to demonstrate severe or aggravated intensity of pain. 67 One only needs to show the act was intended to obliterate the personality of the victim or to diminish his physical or mental capacities 68 for it to constitute torture. As Rodley argues, This is clearly aimed at sophisticated medical or psychological techniques used as an aid to interrogation. 69 Despite these criticisms, the ECHR held to its position of relying on the severity of pain as a determinant of torture in subsequent trials up until the late 1990s. 70 However, in 1999, the Court shifted its position and adopted a dual approach to defining torture by including both the severity of pain and the purpose of the act. Legal commentators have interpreted this shift as suggesting the Court would now rule the five techniques in the Ireland Case as both IDT and torture. 71 One of the reasons for this shift lay in the influence of an alternative interpretation of torture under the UN Convention against Torture (CAT). Although the Declaration against Torture 72 interpreted torture as an aggravated form of cruel, inhuman and degrading treatment (CIDT), similar to the first case in the European Commission, after the Ireland Case, the UN moved away from this interpretation. During the drafting of the

8 Barnes 109 CAT, the United States and United Kingdom wanted to draw upon the Ireland Case and define torture as constituting extreme pain and suffering, with severity of pain being the distinguishing feature between torture and CIDT. 73 Other actors, such as human rights groups, wanted to define torture in terms of the purpose of the act and therefore lean more towards the ruling in the European Commission. The final result was a compromise between the two. 74 The Convention removed the notion torture is an aggravated form of CIDT (Article 16) and defined torture as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 75 Despite the different approaches to define torture mentioned above, the evolution of torture s definition has narrowed in a particular direction over time. First, torture and CIDT are absolutely prohibited. Second, besides maybe the Inter-American Court of Human Rights, CIDT and torture constitute severe pain and suffering. 76 And third, by 2001, the purpose of the act had become the distinguishing feature of torture. 77 This is in order to capture modern torture techniques within the definition. US torture during the war on terror ran counter to these efforts by trying to shift the emphasis back to the severity of pain. The war on terror and the localisation of danger On 11 January 2002, the first 20 enemy combatants from Afghanistan arrived at Guantanamo Bay, Cuba, with interrogations beginning soon after. 78 The Criminal Intelligence Task Force (CITF), military intelligence and the Federal Bureau of Investigation (FBI) initially worked together in what they called Tiger Teams interrogating suspects using the Army Field Manual (FM 34-52) Intelligence Interrogation. 79 Although initially successful, the FBI withdrew from participation in the Tiger Teams in the fall of 2002 after disagreements arose between the FBI and military intelligence over interrogation tactics. 80 A schism emerged between the FBI and the military intelligence because the latter wanted to use more coercive techniques. 81 By October, military intelligence was subjecting Al-Qahtani, a Guantanamo Bay detainee, to growling dogs, yelling and screaming, sleep deprivation, loud music, bright lights, and body placement discomfort. 82 To understand how these practices became possible, it is necessary to see how the administration defined what practices constituted torture. Re-defining torture Despite the removal of Geneva Convention protections for unlawful combatants, President Bush vowed to continue to treat detainees humanely. 83 However, the problem

9 110 International Relations 30(1) is what constitutes humane treatment in the context of interrogations? On 1 August 2002, Assistant Attorney General Jay Bybee responded to a memorandum from Alberto Gonzales, Counsel to the President, clarifying what practices constituted a violation of the Convention against Torture, under Section A, title 18, of the United States Code. Section 2340 defines torture as an: act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering that is incidental to lawful sanctions) upon another person within his custody or physical control. 84 In interpreting this definition, Bybee argued severe physical and mental pain must be extreme, with physical suffering to be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions. 85 Furthermore, reflecting a long history of the legal interpretation of the Eighth Amendment of the US Constitution concerning cruel and unusual punishment, 86 the official must specifically intend to torture. 87 That is, if a person acted in good faith, even if inflicting severe pain and suffering, it would not constitute torture. One can see Bybee drew upon international legal arguments that emphasised the severity of pain as the distinguishing mark of torture. However, in other aspects of his argument, Bybee disregarded the relevance of international law. First, Bybee argued international law regarding CIDT does not apply to the United States because when the United States ratified the Torture Convention, it made a reservation that the Eighth Amendment of the US Constitution would be used as a foundation for interpreting CIDT. 88 And second, Bybee argued both torture and CIDT could be used under the defence of necessity and self-defence against terrorist attacks. 89 Because national security and defence are a duty of the Commander in Chief, any limitations on interrogations would interfere with the Commander in Chief authority of conducting operations against hostile forces. 90 Bybee argued his interpretation of torture was consistent with international and domestic US laws. Although Bybee s memorandum provided the foundations for the authorisation of the counter-resistance and enhanced interrogation programmes, some government officials raised serious moral and legal questions over Bybee s legal argument. Debating interrogation techniques On 11 October 2002, Major General Dunlavey wrote to the Commander of Southern Command requesting the approval of counter-resistance techniques for use in Guantanamo Bay. 91 MG Dunlavey requested new interrogation techniques be approved because existing ones had apparently become less effective over time. 92 Three categories of techniques were requested for use in Guantanamo Bay, which ascended in coerciveness. They were as follows: Category I: yelling, use of multiple interrogators and pretending to be an interrogator from a country known for harsh treatment of detainees. Category II: stress positions for a maximum of 4 hours, falsified documents, isolation for up to 30 days, interrogation in alternative environments, sensory

10 Barnes 111 Category III: deprivation, hooding, 20 hour interrogations, removal of clothing and comfort items, forced grooming, use of individual phobias.to induce stress and switching the detainee from hot rations to MREs. threat of imminent death or harm, exposure to cold weather or water, use of wet towel and dripping water to induce the misperception of suffocation and use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing. 93 On the same day, LTC Beaver, Staff Advocate for the Department of Defense, wrote a memorandum to General James Hill, Commander of the Joint Task Force 170 at Guantanamo Bay, arguing the three categories of techniques were legal. 94 Beaver followed Bybee in arguing the three categories were not severe enough to constitute CIDT or torture. Moreover, if US officials acted in good faith, it would not constitute a violation. However, LTC Beaver did argue that pushing was technically an assault and foreign courts had shown the wet towel technique to produce harm. 95 The Commander of CITF disagreed with Beaver s analysis and argued the use of Category II and III techniques could open any military members up for potential criminal charges. 96 Yet, despite this warning, on 27 November 2002, Secretary of Defense Rumsfeld approved Category I and II techniques and the fourth Category III technique concerning light pushing, grabbing and poking in the chest. Rumsfeld agreed all three categories were legal, but because the US military has a history of restraint, all Category III techniques would not be approved for the time being. 97 The approval of these techniques generated dissent within the intelligence community. Naval Criminal Investigative Service (NCIS) Director Brandt labelled the techniques repugnant and did not want NCIS to be associated with the techniques or the facility they were used in. 98 The FBI also rejected the counter-resistance techniques deciding to stick to rapport-based techniques because they were more effective. 99 Admiral Mora, General Counsel of the Navy, argued such practices constituted, at a minimum, cruel and unusual treatment and, at worst, torture. 100 Mora condemned Beaver s legal memorandum as violating American values and being based on poor legal arguments. 101 In addition, the legal memorandums did not set clear boundaries that separated legal from illegal behaviour. As Mora argued: What did deprivation of light and auditory stimuli mean? Could a detainee be locked in a completely dark cell? And for how long? A month? Longer? What precisely did the authority to exploit phobias permit? Could a detainee be held in a coffin? Could phobias be applied until madness set in? the memo s fundamental problem was that it was completely unbounded it failed to establish a clear boundary for prohibited treatment. 102 Mora warned of the dangers if the techniques were not revised, including escalating violence at Guantanamo Bay, public condemnation of the United States, diminished support for the War on Terror and threat of harm to coalition and allied partnerships. 103 When Mora failed to get the techniques rescinded, he wrote a memorandum on 15 January 2003 labelling the techniques cruel and inhuman and possibly torture and threatened to sign it. 104 In response, Rumsfeld withdrew the 2 December 2002 memorandum

11 112 International Relations 30(1) authorising coercive interrogation techniques and established a Working Group to examine interrogation techniques. 105 The Working Group used Bybee s legal argument as the foundation for the Working Group report. The final Working Group report recommended 35 techniques, with waterboarding (or wet-towel ) absent from the final list. In a secret memorandum on 16 April 2002, 106 Rumsfeld approved 24 techniques for use and kept open the possibility of authorising others if deemed necessary. 107 According to the then UN Special Rapporteur on Torture, Manfred Nowak, Rumsfeld approved exposure to extreme temperatures, deprivations of light and auditory stimuli, environmental manipulation, sleep adjustment, removal of comfort items, and isolation. 108 Waterboarding and the CIA The above discussion concerned the approval of military interrogation techniques. However, the CIA operated under a different set of rules to the military 109 and was able to employ different interrogation techniques. In an August 2002 memorandum, Bybee responded to John Rizzo, Acting General Counsel for the CIA, who had requested authorisation of 10 interrogation techniques 110 the CIA wanted to use against captured al-qaeda member Abu Zubaydah at Guantanamo Bay. 111 One of these techniques was the waterboard. Waterboarding has a history of use in Navy training programmes and exercises, known as the Survival, Evasion, Resistance and Escape (SERE) programme. 112 It is used to prepare US troops for the occasion they may be tortured by enemy soldiers. 113 As Bybee was told by the CIA, the waterboard involves tying the individual to an inclined bench with their feet elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. 114 This restricts breathing for seconds and produces a feeling of suffocation and incipient panic, i.e., the perception of drowning. 115 Because waterboarding increases carbon dioxide levels in one s blood, it produces an automatic perception of drowning, even if the victim knows they will not drown. The cloth is removed and the process repeated. Bybee was orally told the whole process would take 20 minutes. 116 Bybee argued the waterboard, and the other nine techniques, even if used in combination, were not severe enough, nor did officials possess the specific intent, to constitute torture. 117 Furthermore, because the CIA had given guarantees the techniques would not be used in substantial repetition 118 and Zubaydah did not have any pre-existing mental conditions, it was highly improbable Zubaydah would suffer prolonged mental harm. 119 By raising the threshold of what constitutes torture to extreme forms of pain and suffering, Bybee was able to bring waterboarding within lawful conduct. Despite the CIA being able to use different techniques to the military, CIA officials were not authorised to use torture. Although a draft legal memorandum was drawn up in November 2001 that justified torture on the grounds it was necessary to save lives, 120 this legal argument failed to be included in the formal authorisation of enhanced interrogation techniques. Subsequent CIA memorandums made clear torture was abhorrent and universally repudiated 121 and prohibited absolutely. US revisionism sought to redraw the line of prohibited conduct, not abolish it.

12 Barnes 113 The taboo and limits on conduct What effect did the taboo have on the Bush administration? Although the taboo had little impact on Bybee and some members of the CIA who engaged in unauthorised interrogations, 122 the same cannot be said for other members of the administration. Torture was categorised as a dangerous and illegitimate practice that could not be used. Using torture was seen to have negative strategic consequences as it was ineffective and undermined public support for US counterterrorism efforts. Yet, the taboo s constitutive effects also influenced officials. The authorised military techniques, which for these internal critics constituted torture and CIDT, were labelled repugnant and harmful to American values. Torture could not be used, not only because it would have negative strategic repercussions but because it was wrong. Although these critics were unable to stop Rumsfeld from authorising coercive techniques, these strategic and moral concerns did play an important role in shaping the administration s interests. Not everything was permitted. Rumsfeld placed limits (albeit inadequate limits) on authorised US military interrogations based on what constituted humane treatment (as defined by the administration) and what was consistent with US history of restraint during wartime. If everything needed to be done to stop future terrorist attacks, and harsh physical interrogations were seen to be in US interests, why did the United States place limits on its conduct? Despite Bybee leaving open the possibility for the United States to remove itself from its obligations under the Torture Convention, Rumsfeld did not go down that path. Rumsfeld was aware of the negative consequences unrestrained interrogations would have on the image of the United States as a law-abiding nation. Moreover, the legal advice given to the CIA made clear that the practices authorised did not violate US obligations under the Torture Convention and that CIA officials were not to engage in torture. The fact that these limits were debated internally demonstrates these arguments went deeper than public rhetoric and went to how the United States defined its interests and identity during the war on terror. Failing to legitimise norm revisions When the internal memorandums were leaked in 2004, the United States faced resistance to its definition of torture. Human rights groups, 123 the International Committee of the Red Cross (ICRC), 124 the UN Special Rapporteur on Torture, 125 the UN Committee against Torture 126 and the Council of Europe 127 labelled US interrogation practices authorised within Guantanamo Bay as CIDT or torture. These groups argued military and CIA coercive interrogations were unlawful and harmed human dignity. Human rights groups exposed cases of US detainee torture, which, along with the Abu Ghraib detainee abuse scandal, stigmatised the United States as hypocrites who proclaimed to uphold human rights but did the opposite. Several legal campaigns were even launched in foreign countries to have Bush administration officials arrested for torture and war crimes. 128 The public revelations and condemnation of US torture had negative consequences for US counterterrorism efforts. The torture scandal made it difficult for the United States to win hearts and minds in the Middle East 129 and counterterrorism cooperation with allies suffered. 130 Although some states agreed to host CIA clandestine interrogation sites

13 114 International Relations 30(1) on their territory, by , the CIA was forced to relocate detainees out of every country in which it established a detention facility because of pressure from the host government or public revelations about the program, 131 eventually leading to an end to the clandestine detention programme. 132 No state wanted to be associated with the US torture scandal. The international outrage over US torture proved effective in de-legitimising revised military and CIA interrogations, showing not only the resilience of the torture taboo but the difficulty even the most powerful states have in revising, and legitimising, widely observed and institutionalised norms. Within the United States itself, the public response to torture was more mixed. Although the administration received criticism from intelligence and law enforcement officials, 133 Congressional Senators 134 and from the wider public, 135 some within American society openly advocated the use of torture against terrorists to stop ticking bombs and to save lives. 136 This is harmful to the taboo because the absolute prohibition was openly challenged, suggesting some people believed the norm needed to be revised. But does this mean torture was normalised and accepted within the United States? Some opinion polls did signify a majority supported torture, but these polls were in the minority. Gronke et al. collated 32 public opinion polls on torture consisting of around 30,000 Americans between 2001 and 2009 and found 55 per cent were opposed to torture, and 40.8 per cent in favour. 137 Although this figure in favour of torture is higher than in some other countries, 138 it hardly suggests a pro-torture culture. What explains the disparity between these polls and the perception of a pro-torture culture within the United States? Gronke et al. argue there has been a false consensus regarding public perception of torture. A false consensus is when an individual mistakenly believes that their viewpoints represent the public majority. 139 The authors argue nearly two-thirds of Americans overestimated the level of national support for torture, 140 helping explain why administration officials felt confident they could try and revise the torture prohibition. 141 In response to the international and domestic outrage, in 2004, the Bush administration revoked the 1 August 2002 Bybee memorandum. The Acting Assistant Attorney General, Daniel Levin, wrote a new memorandum (Levin memorandum) which superseded the Bybee memorandum in full. 142 This memorandum was written for public consumption and released to the general public. The Levin memorandum moved away from defining torture as constituting extreme acts and upheld the absolute prohibition against torture. 143 Other measures taken by the United States included passing the Detainee Treatment Act of This Act superseded Rumsfeld s memorandums and authorised a return to the FM Field Manual as the authority for interrogation techniques. 144 Yet, despite this positive development, the Levin memorandum, along with the Military Commissions Act 2006, continued to define torture in relation to severity of pain, ignoring the purpose of the act. 145 This went against how the Inter-American Court of Human Rights and the UN Committee against Torture have understood the definition of torture, 146 and did not take into account the shifting position of the ECHR. Moreover, the ECHR has not been influenced by US revisionism, with a 2012 decision finding an individual subjected to US extraordinary rendition had suffered torture and IDT at the hands of the CIA. 147

14 Barnes 115 Former Bush administration officials continued to protect their definition of torture after the administration stepped down in This included Karl Rove, 148 former Vice President Dick Cheney, 149 and former President Bush. 150 However, these opinions were in the minority as US revisions failed to convince a domestic or international audience that coercive military and CIA interrogations did not constitute torture. Since President Obama has entered office, the United States has distanced itself from coercive interrogation practices, admitting the United States used torture 151 and condemning waterboarding as torture. 152 This brought the administration s views more in line with the US State Department, which has condemned other countries for using waterboarding. 153 The New York Times has now publicly stated it would call the former administration s coercive interrogation techniques torture, removing any doubts the CIA s interrogation programme was not torture. 154 The outrage over the findings of the 2014 US Senate Intelligence Committee report on CIA torture also demonstrates the failings of the Bush administration s revisionism, with Senator Feinstein, Chair of the Committee, arguing CIA detainees were tortured. 155 Conclusion Despite being a global superpower, the United States could not define torture however it liked. The United States failed to shift the definition back to emphasising the severity of pain. What this shows is that international moral norms do not just reflect the interests of the powerful. Actors, even superpowers, cannot dictate interpretations of social reality. We live in an international society comprising of inter-subjective normative frameworks that enable and constrain behaviour, as well as constitute identities and interests. But why should we care? Why does this argument matter? And what contribution does it make to normative IR theory? The Bush administration still violated the torture taboo, and individuals were still subjected to harm. However, the fact that the Bush administration felt constrained by the taboo, and could not re-define it, demonstrates not only that the torture taboo matters but that norm revisionism can sometimes be difficult to undertake. This raises serious doubts over the claims that normative change is fragile. Normative change (and revisionism) is difficult as actors have to successfully persuade others to change their attitudes and beliefs towards a norm or value. Torture has a potent stigma linked to practices such as attacking the defenceless, abuse of power and unnecessary cruelty. The taboo s strong normative tradition, along with its institutionalisation under international law, made it difficult for the United States to revise the norm. Demonstrating a norm s resistance to change also offers an original way to help determine the strength of a norm. Avenues for further research could be whether other norms are also similarly resilient to norm revisionism, or whether the torture taboo s normative tradition, institutionalisation under international law and non-derogable status make the torture prohibition more resilient to change than others. The fact that the administration continued to see torture as a taboo that could not openly be promoted or supported demonstrates the strength of its legitimacy: despite the United States declaring the right to go to war and kill terrorist leaders in the war on terror, it could not declare the right to torture them.

15 116 International Relations 30(1) Yet, the case of re-definition by the Bush administration also demonstrates more effort needs to be made to prevent further manipulation of the taboo in the future. The United States continues to cling onto using severity of pain to define torture, and there has been no punishment of Bush administration officials for authorising CIDT and torture. To be able to clearly define when torture has occurred is integral to recognising and preventing a violation of human dignity as well as upholding justice by punishing those responsible. Definitions need to take into account changing techniques of torture and stress the importance of respecting human dignity over the right of the state to hurt others. Emphasising the purpose of the act over the severity of pain to define torture has been favoured by two previous UN Special Rapporteurs on Torture because it encompasses a wider set of practices within the torture prohibition. 156 However, one must not think that change will come overnight, or that simply re-defining torture will prevent its further use. Other measures, such as punishing norm violators and public pressure on states to refrain from torture, must also be included in a strategy that seeks to prevent further manipulation of moral norms and law in the future. Acknowledgements I would like to thank the editors of International Relations and three anonymous reviewers for their comments on the original submission. Funding While Jamal Barnes previously received an Australian Postgraduate Award for his PhD research, this article was not specifically funded by any agency. Notes 1. A jus cogens, or peremptory norm, is defined under Article 53 of the 1969 Vienna Convention of the Law of Treaties as: a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. 2. See the 1948 Universal Declaration of Human Rights (Article 5); the 1949 Geneva Convention relative to the treatment of Prisoners of War (Article 99); the 1966 International Covenant on Civil and Political Rights (Article 7); the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3); the 1969 American Convention on Human Rights (Article 5(2)); the 1981 African Charter on Human and Peoples Rights (Article 5); the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the 1985 Inter-American Convention to Prevent and Punish Torture. 3. Ryder McKeown, Norm Regress: US Revisionism and the Slow Death of the Torture Norm, International Relations, 23(1), 2009, pp. 5 25; on norm revisionism in the war on terror, see the special issue of International Politics, 44(2), I define norms as social standards for the proper behavior of states of a stipulated identity. See Ann E. Towns, Norms and Social Hierarchies: Understanding International Policy Diffusion From Below, International Organization, 66(2), 2012, p. 187.