Abstract
International law has become the reference frame that establishes legitimacy for international encounters, but paradoxically and at the same time international law itself has become increasingly contested. This article analyses the relationship between norm acceptance and norm implementation and examines an instance of norm contestation in the context of the US ‘War on Terror’. The focus is on the use of torture or ‘enhanced interrogation methods’ during the Bush Presidency. The so-called ‘torture memos’ that were made public in recent years shed light on different arguments that were used by the government at the time to justify their actions and to show that they were in line with existing international legal obligations. The article seeks to assess the validity of international agreements by analysing compliance and actual meaning (meaning-in-use) of fundamental international human rights norms that are being contested through different interpretations and usages on the domestic level.
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Notes
See for instance Goldsmith and Posner (2006) and Adamson and Sriram (2010).
Other decisions to the same effect include: House of Lords – A (FC) and others v. Secretary of State for the Home Department, 2005 (at 33–34); Supreme Court of Canada – Suresh v. Canada, 2002 (at 62–64); UN Torture Committee, 23 November 2003 (at 1 & 5); and ICTY – Furundzija, 1998 (at 154)
Section 2340 A of Title 18, United States Code, prohibits torture committed by public officials against persons within the public official’s custody or control.
There is a long standing debate over what kind of powers the President has in wartimes under the US Constitution. War powers are divided between the legislative and the executive branches of the US government. Article I, Section 8 of the Constitution gives Congress the powers to declare war. Article II, Section 2 gives the President the power to direct troops as Commander-in-Chief. Some argue that this provision gives the President unchecked powers, but others counter that there are limits to these powers. They argue that presidential power in wartime is essentially based on ‘civilian supremacy’ over the military rather than giving additional powers in times of emergency.
This reminds of Richard Nixon’s famous quote: ‘When the President does it that means it’s not illegal’ (Interview with David Frost, 6 April 1977).
Unlike the 2005 memo that sought permission for ten interrogation methods, these six did not include waterboarding.
The Military Commission Act (MCA) that followed this Supreme Court decision leaves interpretation of Common Article 3 to the President.
Bradbury cited several members of Congress as giving their support to this finding. This was disputed by John McCain, however, who argued that one of the techniques (sleep deprivation) amounted to a form of torture and that he would therefore oppose it. (Scherer and Ghosh, 2009)
A number of calls have been made by NGOs, such as Human Rights Watch and the Centre for Constitutional Rights, to criminally investigate Bush and other senior officials (including Cheney and Rumsfeld) for their role in authorising torture, but Obama remains firm that no such investigation will be held.
Overall, it is interesting to note that the Torture Report focusses mainly on criticising the CIA for using torture because it was ineffective as a tool to gather intelligence rather than because torture is illegal.
At the time of writing, Senator Dianne Feinstein is planning to propose a series of recommendations to prevent the future use of torture by the government.
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Birdsall, A. But we don’t call it ‘torture’! Norm contestation during the US ‘War on Terror’. Int Polit 53, 176–197 (2016). https://doi.org/10.1057/ip.2015.42
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DOI: https://doi.org/10.1057/ip.2015.42