"What We Have Seen Has Been Terrible" Public Presentational Torture and the Communicative Logic of State Terror
Rothenberg, Daniel, Albany Law Review
What we have seen has been terrible: burned corpses, women impaled and buried as if they were animals ready for the spit, all doubled up, and children massacred and carved up with machetes. The women too, murdered like Christ. (1)
Torture is one of the most disturbing crimes imaginable. It is not only the harm of the act that defines it as reprehensible, but the logic of power that motivates its practice. Torture is bound to the intimacy of human beings' essential physical nature and the fact that the body--as the common ground of all humanity--can be made to evoke pain that exists beyond words. International human rights law defines torture as one of the worst crimes it is possible to commit and there exists a universal prohibition on its practice under all circumstances. (2)
Following the tragic events of September 11th and the resulting "war on terrorism," the question of torture's legitimacy has been raised repeatedly in both scholarly writings and the popular press. (3) These considerations tend to focus on two interrelated issues, the factual question of whether torture is currently being used as a counter-terrorism strategy by the United States government and its allies, and the theoretical question of whether torture represents a justifiable policy in certain situations. (4) Alongside evidence that the world's dominant democratic state may be engaging in torture, there exists a growing number of scholars, as well as rising public opinion, supporting the legitimacy of the practice. (5) One of the most troubling aspects of the response to recent national security threats is the apparent ease with which core human rights principles--such as the universal prohibition on torture have been discarded by many who otherwise defend the value of essential rights. (6) Clearly these foundational concepts cannot be of great significance if they can be set aside when inconvenient to state interests. (7) In light of torture's universal prohibition and its status as a jus cogens crime, (8) affirming its legitimacy involves a critique of the value and efficacy of the human rights system.
This essay begins with a testimony describing the open display of corpses bearing the physical marks of torture. Throughout the world, state agents leave mutilated corpses in places where they will be discovered, in town squares, hung from trees, and placed along roads and well-worn paths. (9) This phenomenon--which I term "public presentational torture"--is especially common during wars, internal armed conflicts, and states of emergency. What is compelling and disturbing about public presentational torture is not only the terrible quality of the suffering evoked, but the use of brutality to influence others. The shocking nature of these acts merits broad and unproblematic condemnation and appears to be precisely the sort of crime that deserves universal prohibition. This practice is of special significance because it draws attention to torture's communicative nature as social policy, (10) an element of the crime that is often ignored by those who defend its practice. (11)
Those who support torture's legitimacy generally engage the issue through rational choice hypotheticals that balance the harm created by the act against the harm prevented by its judicious application, as seen in the commonly referenced "ticking bomb" scenario. (12) While the sensitivity and complexity of these arguments varies, they exhibit an understanding of torture as the extension of legitimate policy goals through the application of intense force. As such, debates regarding torture turn on its administration, mechanisms of limitation, authorization, and other issues that ensure the practice is tamed for use by a democratic state. (13) This essay argues that public presentational torture presents an important corrective to this argument by revealing that rational choice justifications are bound to torture's secrecy and by highlighting the act's essential communicative logic. …