Into the Light of Day: Torture, Human Rights, and Bush's State of Exception

The following is the text of a lecture by Mark Danner at Princeton University on January 13, 2006, delivered as a keynote speech to the founding conference of the National Religious Campaign to End Torture.  Respondents were Scott Horton, a human rights attorney and Chairman of the New York Bar Association's Committee on International law, and Jeremy Waldron, University Professor of Law at Columbia. The Reverend Bob Moore, Princeton Theological Seminary, introduced the lecture and moderated discussion.   

Mr. George Hunsinger: Bob and I sat down together in July, and I think it was Bob's idea that we have a conference, and it was Bob's idea that we have a national campaign, and it was Bob's idea that we should develop a Lenten Bible study series, all of which we have now accomplished.  I don't know whether he's my right hand or I'm his.  He's certainly my right hand man.   

He is the director of the Coalition for Peace Action here in Princeton.  And the Coalition has just celebrated its 25th anniversary.  It is, perhaps, the most successful and effective local peace action group in the country, or certainly one of them, and it's widely respected throughout the greater Princeton community.  And Bob has assembled a wonderful board and staff of people around him, but it's largely because of Bob that the group has the stature and the significance that it has.   

When the Abu Ghraib photographs were released, I, myself wanted to write a statement and raise money to publicize it, and I didn't know how to do that.  And it was suggested maybe we could get a web site.  And I remembered Howard Dean, and I had visions of putting up a web site and watching that little thermometer rise with contributions coming in online.  It didn't quite happen that way, but Bob took my start-up organization, Church Folks for a Better America, under his wing.   

He gave the institutional sponsorship, tax exempt status, a way to collect money and put it in a bank account, and have an auditor and a web master and so on.  So again, if it weren't for Bob Moore and the Coalition for Peace Action, there would be no Church Folks for a Better America, and we would not be having this event.  So it's a great pleasure for me to introduce to you the Reverend Bob Moore.  [Applause.

Mr. Bob Moore: Thank you, George.  It's been a real pleasure and an honor to work with somebody who has done such great work and leadership as George Hunsinger, but now we have broadened that to a whole team of people in the religious community, and it's been really exciting.  Our very first meeting of getting the organizing committee together, thanks to the Churches Center for Theology and Public Policy and others involved in the outreach, but especially to the Churches Center, our very first meeting had 28 people, from almost that many religious groups involved in it.  And what a spectacular start, and this is a spectacular next step, and we're only getting started, so I'm excited. 

This evening we're going to have a plenary address by somebody who I think has played a pivotal role in bringing the issue of torture to the attention of the people of America, the people of the world, and that is Mark Danner.  And then we're going to have two respondents to Mark's presentation.  I'm going to save a little bit of time because I believe all of you can read, and in your packets you have a green sheet.  So Mark Danner's little bio, short bio, is right there on the first page.   

The only thing I want to add to what is there is we forgot one of his professorships.  He's actually bicoastal.  He's not only a West Coast person, a professor of journalism at the University of California Berkeley, he also has an East Coast leg, which he is the Henry Luce Professor of Human Rights, Democracy and Journalism at Bard College, so we're very honored to have Mark as our opening speaker. 

Let me just say a few words about the respondents, and then we can kind of go straight through.  And I'm a big believer in having a lot of dialogue, and I know at least Mark was expressing on the way over from the train station that he hoped that, as the last time he was here, which was only a few months ago, at a public presentation at the Unitarian Universalist Congregation of Princeton, he was hoping that we could do as we did that night, which is have a very substantial amount of time for Question & Answer.  So I'm hoping we might be able to have — this session is scheduled to end at 9:30 — that we might be able to have as many as 45 minutes for you to substantially interact with these excellent people.  So hopefully it won't be quite as rushed as our previous panels had to be. 

One of our respondents is going to be Scott Horton.  And again, if you look on Page 2 of your green sheet, you can see Scott's bona fides.  And then, on the second to the last page of your green sheet is Jeremy Waldron.  We're very honored to have all these people with us.  We're very much looking forward to hearing their insights and what they have to share.   

I asked Mark if it was all right if I said this about him as I introduced him, and he didn't object, so I'm going to go ahead and say it.  I don't think there's anybody who has done more to bring the issue of torture by the United States government to the forefront, to the attention of the public, and to prick our consciences.  I don't think there's anybody who has done more than that in this country than Mark Danner.  So I'm very pleased to present to you Mark Danner, Professor Mark Danner.  [Applause.]

Mr. Mark Danner: Thank you very much.  I don't remember Bob asking me that.  [Laughter.]  If he had, I would have said no.  But anyway, it's a great honor to be here tonight, and to be at the kickoff of the National Religious Campaign Against Torture.  I'm somewhat daunted by the people in this room, the experience they represent, the commitment they represent, and the knowledge they represent.   

And that's especially true when it comes to my respondents, Scott Horton, who's a friend and has done an enormous amount, some of it public, a lot not so public, to affect this issue, to expose it and to serve as a kind of burr behind the public institutions of this country to change the attitudes and policy toward torture.  And I'm very glad, tonight, to meet Professor Jeremy Waldron, a university professor at Columbia University whose work I've immensely admired over the years.  Very good to make his acquaintance.   

The down side of this is I think both of these gentlemen know a lot more than I do, and I am neither — the kind of professor titles attempt to disguise it — I'm actually pretty much just a journalist, and I'm neither a lawyer nor a theologian.  I thought I might say a few words about Carl Schmitt, and then Scott Horton pulled out this incredibly large book in German.  [Laughter.]  In German!  In German, which I thought was a kind of aggressive gesture.  [Laughter.]  So I struck the Carl Schmitt parts from the talk.   

But I do want to say that I think this campaign, the National Religious Campaign Against Torture, is extremely important, because as we stand here today or as we sit here today, it's been more than three years since the first large-scale piece in the newspaper about torture, and that was in The Washington Post on December 26th, 2002.  This issue has been exposed, it's been talked about.  And the work now, as so often, is political work.  It is not the work of exposure.  It is not information.  It's politics.   

Journalists like to think that the heart of the matter is the revelation.  After you have the revelation — I grew up in this tradition myself.  One of my earliest political memories is watching the Watergate hearings lying on the couch in my parents' home in the Adirondacks, my mother yelling in the background, "Go outside and do something!"  Watching those hearings, and the model of scandal that comes to us from that event — and for those of my generation, I think, this notion that there will be revelation, probably partly thanks to the press, helped by leaks within the government, there will then be an official investigation led by the Congress or by the judiciary, or the two institutions working together.  Finally there will be expiation, and there will be some kind of punishment, and there will be, in a sense, the society will cleanse itself through its institutions and return to the status quo happy, or return, perhaps a better turn of phrase here would be, return to a state of some kind of grace.  That has not happened.   

And we live now in what I've called the age of frozen scandal, in which the revelation happens — and the war, obviously, and the arguments before the Iraq War, another example of this — the revelations happen, they are proven, in many cases, they are actually admitted, and then we live with them.  They float about and we're forced to make a decision about what we, as moral beings, as ethical beings, and as political beings, are going to do about it.   

I participated in an event a few months ago — actually, I don't know when it was — but [Roslyn Wright] just reminded me — she's here tonight — in which John Conyers spoke, and he called for a campaign against torture that would parallel the Civil Rights campaign of the sixties.  And I started to believe that that's what it will take.  And insofar as we can think of that as beginning here tonight, I'm very honored to be here, and I thank Princeton Theological Seminary and the other many good institutions, Human Rights First, Church Folk for a Better America, Coalition for Peace Action, and a number of other groups, and George Hunsinger for inviting me.  I'm also very glad — I can't stay tomorrow because I have to go to a bar mitzvah in California, and I'm very glad that the Rabbis for Human Rights are here, because I hope they'll understand that.  [Laughter.]  

I'm really going to try to make a rather simple argument, which is that since 9/11, since the shock of 9/11, we've been living in a state of exception.  We've been living under a regime of emergency law that we've been fairly unconscious of.  We are like blind people sitting in a cage.  We don't know where the bars are.  And events over the last couple of years, beginning with Abu Ghraib in the end of April 2004, some of us have started to grope forward and feel those bars of the cage.  We've started to feel the limits of, the borderlines of the state of exception. 

Over the last few months, the McCain Amendment, at least, is one example of the way that that state of exception has come into the light.  The title of my talk tonight I called "Into the Light of Day: Terror, Torture, and Bush's State of Exception."  We're at, it seems to me, a critical moment now because the state of exception, of which I think the torture regime is the critical test case, has started to come out in the open, and it's starting to be treated politically.  And I say critical because it isn't clear where that political test will come out.   

The McCain Amendment is a very good example of that.  The amendment, after a great deal of work by a great many people, one of whom is Scott Horton, and others of whom I'm sure are here, after a great deal of struggle, was tasked, over the strong opposition of the Administration, particularly Vice President Richard B. Cheney, the President, as everyone here knows, imposed on it a signing statement that essentially said — and I'm not a lawyer, so I can make these kinds of crude generalizations — tough, I'm not going to abide by it if I don't want to.  Scott and Jeremy Waldron can tell me if that legally is not quite right, but that's what I get out of it.  Tough, I'm not going to abide by it if I don't want to.  I think that that's an example of a number of test cases that are going to come up.   

So we're in the realm — on the one hand, and on the good side, we've entered, to some degree, the realm of light, which is these issues, the issues that define the state of exception, have come out on the political stage.  The darker side of that is the risk that we all face, and every citizen of this country faces, when it comes to the question of how they're going to turn out.  So having the state of exception come out in front of us is a frightening thing, I think, but a necessary thing. 

I was reading some articles, when I was thinking about what I wanted to tell you tonight, in my files, and one of them caught my eye.  It appeared in The Washington Post May 21st, last May, 2005.  It begins this way.  "The CIA Gulf Stream Five jet touched down at a small airport west of here just before 9:00 p.m."  It's datelined Stockholm, I should tell you.  "On a subfreezing night in December, 2001."  So several months after 9/11.  "Half a dozen agents wearing hoods that covered their faces stepped down from the aircraft and hurried across the tarmac to take custody of two prisoners, suspected Islamic radicals from Egypt," who, I should say, had been living openly in Sweden.   

"Inside the airport police station, Swedish officers watched as the CIA operatives pulled out scissors and rapidly sliced off the prisoners' clothes, including their underwear.  They probed inside the men's mouths and ears and examined their hair before dressing the pair in sweatsuits and draping hoods over their heads.  The suspects were then marched in chains to the planes, where they were strapped to mattresses on the floor in the back of the cabin.  The Swedish security" — now all of this, we've all read scenes like this, probably too many of them, in the last few months, of that extraordinary rendition, or rendition.  The reason the article caught my eye is because of the Swedish element, which turns it into a strange little comedy. 

"Swedish security police said they were taken aback by the swiftness and precision of the CIA agents that night.  Investigators concluded that the Swedes essentially stood aside and let the Americans take control of the operation, moving silently and communicating with hand signals, the documents show."  The Americans weren't saying anything.  "Quote, 'We were surprised, when the crew stepped out of the plane, they seemed to be very professional.  They'd obviously done this before,' [Arne Anderson], an assistant director for the Swedish National Security Police, told government investigators.  One Swedish officer" — and as I say, this is kind of a grim comedy — "walked up the steps of the aircraft to greet the crew and was surprised to see that the agents were wearing hoods with semi-opaque fabric around the face, even though the small airport was deserted.  'I told them that you don't need to wear hoods because there's no one here,' the officer recalls in his statement to investigators.  The agents ignored him."   

"The Swedish police said they were also perplexed by demands from the U.S. agents that they be allowed to strip search the prisoners, even though the two men had already been searched and were in handcuffs.  The Swedes relented only after the captain of the plane said he would refuse to depart unless the Americans were allowed to do things their way.  The prisoners were taken to the airport police station one by one to be searched.  One agent quickly slit their clothes with a pair of scissors, examined each piece of cloth before placing it in a plastic bag.  Another agent checked the suspects' hair, mouths, and lips, while a third agent took photographs from behind, according to Swedish officers.  As the prisoners stood there naked and motionless, they were zipped into gray track suits.  Their heads were covered with hoods that, in the words of one Swedish officer, covered everything like a big cone."   

I should say that another part of this the Swedes didn't see was that CIA agents, during the search, inserted tranquilizing suppositories in their anuses during the search, and also clothed them in diapers.  You get the idea.  The chief of the operation, the Swede on the premises, on-site, told an investigating committee, "In my judgment, it is clear that some of the measures adopted after the two Egyptians had arrived at [Bromma] Airport, were excessive in relation to the actual risks involved," which I take to be one attribute of the state of exception, that we've entered a kind of security regime in which risk is not necessarily, and usually isn't the key factor.  In fact, we have a routinized manner of security in which the risks posed by individual prisoners is essentially irrelevant to the process.   

The process is immune from any outside statement of risk, of the fact that these men were handcuffed, the fact that they had already been searched, the fact that they represented essentially no threat.  Because they were being subject to extraordinary rendition, they had to be treated this way.  And the treatment itself, that is, the slitting of the clothes, the insertion of the tranquilizer, strikes me as also an essential part of this particular state of exception, which is the total denial of these people's humanity, that they, in Kant's sense, are simply means, they are no longer ends.  They have no subjective existence, they are not subjects.   

Another brief quote, a briefer quotation.  This is from James Risen's book called State of War.  Has anybody here read that book?  Well, it's an important book.  It's just come out.  The book is the source of the revelation about National Security Agency spying that has roiled Washington, as we say, over the last few weeks.  Risen, in a kind of throw away paragraph, he's talking about Bright Light.  Bright Light is the code name for the CIA dark site which apparently was recently in Poland.  Excuse me?  [Laughter.]   

Female Voice: It's ironic. 

Mr. Danner:  Yes, it is ironic.  I'm sort of past the irony on this, I think, but this is true.  Bright Light, the dark sites that began in apparently Thailand, and moved to Diego Garcia, went to Poland and Romania, and apparently now has moved to Morocco, we are told.  We're not sure.  This is a throw away line that Risen doesn't even pay much attention to.  He's talking about the fact that Bright Light, even CIA officers with the highest security clearance, are not permitted to call this facility or contact anybody there and give questions for interrogation.  They have to be given to a special several officers, so there's no contact with these sites.  It is beyond secret, at least within the CIA itself.   

"CIA officers soon learned one thing for sure," writes Risen.  "Prisoners sent to Bright Light and to other facilities handling high value detainees were probably never going to be released.  The word is that once you get sent" — excuse me, this is a quote from a CIA Center for Counterterrorism veteran, as he's identified in the book — "'The word is that once you get sent to Bright Light, you never come back.'"   

Now, I found this particularly chilling because I thought, well, we have this government, it's elected, the administration, at least, the executive branch is elected for four years, and at the most eight years, reelected, and yet there is a national security bureaucracy that, in effect, can make a decision that these people have gone away forever.  They're gone.  There's been no adjudication, of course, there's been no involvement of other branches of government whatever.  And this suggests that the — Risen comments "the CIA was building a dark infrastructure that no one wanted to talk about."  The implication here is the dark infrastructure was permanent, that is, that it would last at least for the lifetime of these prisoners, and that was the assumption within the government. 

The question I think we have to consider is, how did we get here?  Is it simply because it's an evil government?  Is it simply because these people are raving Republicans?  What actually led us to this point, this point of extremity, as it seems to me?  I want to read you another quote which came about less than a month ago, three weeks ago.  George Bush came into the White House one morning.  It was right after the NSA program was revealed, and he was asked about it.  And after expressing anger over the shameful act that someone would reveal this program, he said something that I think was rather revealing.   

"First of all, right after September the 11th, I knew we were fighting a different kind of war, and so I asked people in my administration to analyze how best for me and our government to do the job people expected us to do, which is to detect and prevent a possible attack.  That's what the people want.  What we quickly learned was that Al Qaeda was not a conventional enemy.  Some lived in our cities and communities and communicated from here in America to plot and plan with bin Laden's lieutenants in Afghanistan, Pakistan and elsewhere.  Then they boarded our airplanes and launched the worst on the attack on the country in our nation's history.

"This new threat" — and you've heard this rhetoric before — "This new threat required us to think and act differently.  To prevent this from happening again, we need to connect the dots before the attack happens, not after.  As President and Commander and Chief, I have the constitutional responsibility and the constitutional authority to protect our country.  Article II of the Constitution gives me the responsibility and the authority necessary to do it.  And after September the 11th, the United States Congress also granted me additional authority to use military force against Al Qaeda.  After September the 11th, one question my administration had to answer was, using the authority I have, how do we effectively detect enemies hiding in our midst and prevent them from striking us again?" 

Now, this is a description of what happened the morning after the attacks.  We have, from Richard Clarke, a description of what happened that evening, which is that the President, in a meeting of his top national security aides, including Mr. Clarke, who was then in charge of cyber terrorism, and he was arguably the most experienced official in the Administration when it came to terrorism, the President, Richard Clarke quotes him as saying, said, "Any barriers in your way, they are gone.  I don't care what the international lawyers say, we are going to kick some ass." 

There is another version of this sentiment, which is Cofer Black's famous quote to Congress a few days later, or about a month later.  He said, "All you need to know about very highly classified operational flexibility is that there was a before 9/11 and there was an after 9/11.  After 9/11 the gloves came off."  Now, "the gloves came off" phrase, as Scott knows, has kind of moved through the last four years, and appeared in various strange places, including in the email of an intelligence captain from Abu Ghraib itself, who said, "Gentlemen, now the gloves are coming off."  He was asking for techniques that individual interrogators might want to suggest that would go beyond normal techniques because, as he said, we have to break these prisoners, gentlemen.  The gloves are coming off.   

I want to turn your attention to that phrase for just a second.  It's a wonderful phrase, and I think extremely important, because it implies, obviously, that before 9/11 the gloves were on.  As I say, this is obvious, but I think we should think about it for a minute.  The notion is that human rights and laws, many of the laws which direct our government and say what it can and cannot do in the national security area, represent a kind of gloving of power, that is, that the power of the national government should not be and has been limited in a way that is, in fact, illegitimate, I think is the best word.  And it is clear that many of these officials at the top of our government believe just that.   

And I think when we look at the measures that were adopted after 9/11, and I'm going to talk about specific measures in a second, I think we have to keep in mind a couple of things.  One is that many of the officials who are now in charge of our national security held, obviously, very high positions during the Nixon Administration, and saw many of the laws, including, most obviously, the War Powers Resolution, that they believed unfairly and illegitimately limited the power of the President.  They saw those laws enacted.  And it's clear that Richard Cheney, who is a key figure in all of this, believes not just that those laws are illegitimate, but that they should be shown to be illegitimate.   

And I think that's a very important point when we talk about, for example, the NSA wiretapping.  When the Administration, in the days after 9/11, probably could have gotten anything they wanted from Congress, yet instead chose to circumvent the law because they thought, in fact, that the laws, the 1978 FISA Act, was illegitimate, it shouldn't be in place.  Cheney said, the day after Bush talked in reaction to this 9/11 — excuse me, in reaction to the NSA exposure, he was very blunt about this.  He was on a plane in Omaha and was flying over Omaha in the Gulf, and he said, "Over the years there's been an erosion of presidential power and authority, and it's reflected in a number of developments.  The War Powers Act, which many people believe is unconstitutional, I am one of those who believe that this was an infringement upon the authority of the President.  Watergate, a lot of the things around Watergate in Vietnam, both, in the '70s, served to erode the authority, I think, a president needs to be effective, especially in the national security area."   

And then, very interestingly, "Part of the argument in Iran-Contra was whether or not the President had the authority to do what was done in the Reagan years," which I will remind you was shipping arms to the Iranians in exchange for hostages, and funding those arms purchases with money — or excuse me, selling those arms and using that money to fund the Contras in Nicaragua, a remarkable covert action that circumvented all kinds of congressional prerogatives, including the most inherent congressional power, which is that over the purse.  Cheney believes that, in fact, the President had the power to do that and should not have been stopped.   

"Those of us in the minority wrote minority reviews.  I think they're very good in laying out a robust view of the President's prerogative with respect to the conduct of especially foreign policy and national security matters.  It will give you a much broader perspective.  I do believe that, especially in the day and age we live in, the nature of the threats we face was triggering the Cold War as well.  I think what is true now, the President of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national policy."

And he was asked by a reporter on the plane, do you think some of the measures that you've taken have started to swing that proper balance back?  He said, "I think it's begun to swing back."  And he also said the Democrats who pushed to pare the powers of the presidency after the disclosure of the eavesdropping program would pay a political price.  "'Either we're serious about fighting the war on terror or we're not,' he said.  'Either we believe that there are individuals out there doing everything they can to launch more attacks, who are trying to get ever deadlier weapons to use against us or we don't.  The President and I believe very deeply that there is a hell of a threat.'" 

So we had, after 9/11, a number of officials at the apex of the government — and I'm talking about Rumsfeld and Cheney, above all — who believed that the President's power had been unduly circumscribed, and that that balance, the President's power, must be restored.  We also had a government bureaucracy, a national security bureaucracy, that had been set up during the Cold War, and that had been, in essence, over the last eight or nine years, rather severely...I shouldn't say severely reformed, but the Cold War structures of the government had started to be pushed back.   

The military had been reduced by about a third, other parts of the bureaucracy had been, as it were, threatened.  And in the words of the Defense Science Board, "After 9/11, Washington policy defense cultures were seeking out Cold War models.  With the surprise announcement of a new struggle, the U.S. government reflexively inclined toward Cold War style responses to the new threat, without a thought or a care as to whether these were the best responses to a very different strategic situation."  This is the Pentagon's report.   

So you have people from the Nixon Administration who believe the President's power has been circumscribed, you have a national security bureaucracy that was set up for the Cold War, and you have a kind of enemy that is living in our cities and among our homes, as the President said, that was actually perfectly adapted to a Cold War kind of response, that is to make terrorists essentially into Communists.   

I said, at the beginning, that we're living in a state of exception.  I was going to talk about Carl Schmitt here, but... 

Male Voice:  Feel free. 

Mr. Danner:  Well, I was going to take that book and try to translate some of it.  [Laughter.]  In fact, however, I'm going to let Scott do that.  But the one thing I will say — and many of you may know that the famous quote, I think the most famous quote from Carl Schmitt is, "the sovereign is he who decides the state of exception," which I take to mean that when we're looking for ultimate power, it resides in either the executive or the official or the person whose power it is to set aside the law.   

And since 9/11, we have what might be called a hybrid state of exception.  Some of the powers the President has taken on, to detain prisoners, for example, went to Congress and were approved.  Notable, obviously, are those powers in the Patriot Act having to do with aliens, with his ability to detain them.  Others, however, they did not make public.  And I'm thinking of the most obvious one being the military order of November 13th, 2001, which created, essentially, the notion of unlawful combatants, which has been absolutely critical to the entire torture infrastructure.   

I want to read you something from Giorgio Agamben, who wrote a book called State of Exception, which some people here may know, what seems to me the best account of this.  Does anybody know this writer or this book?  Yes.  A couple tentative hands being raised.   

He says, "The immediately biopolitical significance of the state of exception as the original structure in which law encompasses living beings by means of its own suspension emerges clearly in the military order issued by the President of the United States on November 13th, 2001 which authorized the indefinite detention and trial by military commissions" — and he's quick to say these are not to be confused with lawful military tribunals, military commissions created by the executive — "the indefinite detention of non-citizens suspected of involvement in terrorist activities."  He says non-citizens.  Of course, José Padilla, there are examples of citizens who have also entered this realm, which we can talk about in a minute.   

"The U.S. Patriot Act issued by the U.S. Senate on October 26th, 2001 already allowed the Attorney General to 'take into custody any alien suspected of activities that endangered' the national security of the United States.  What is new about President Bush's order" — he means the military order of November 13th — "is that it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being.  Not only do the Taliban captured in Afghanistan not enjoy the status of POWs, as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws."

You'll remember that a British jurist, a distinguished British jurist, described Guantanamo as a legal black hole.  He's making, of course, a broader — he's not just talking about Guantanamo here.  "Neither prisoners nor persons accused, but simply detainees, they are the subject of a pure de facto rule."  And I want you to think back to that Swedish airport and the actions that were taken with those two men, unarmed men, men who were in handcuffs.  "They are the object of pure de facto rule, of a detention that is indefinite not only in the temporal sense, but in its very nature, since it is entirely removed from the law and from judicial oversight."   

Now, he compares this to the Nazi lager system.  We don't have to do that, and I don't want to do that, because it brings up a lot of other issues.  But for him this is approaching the situation of people who have no independent existence.  Not only no legal rights, but do not essentially have as persons.  He describes such people elsewhere, he uses an old phrase from Roman law called homo sacer, which is, in effect, that this person is designated as someone for whom it is not a crime to kill them.  They are put outside of the legal realm entirely.   

Now, what is the heterodox state of exception that we're talking about?  I've mentioned the November 13th, 2001 military order, which I think is absolutely critical.  The presidential signing which created what is called the GST, which is the largest covert operation undertaken by the CIA perhaps in its history, but certainly since the height of the Cold War, which Dana Priest wrote about in The Washington Post is another.  The series of decisions that led up to President Bush's decision on the Geneva Conventions that eventuated in the decision on February — I believe it was February 13th, 2002 seems to be another.   

All of this eventuated in the detention of something approaching 85,000 people, according to the AP.  The AP has done a count in which it's including not only high value detainees, but prisoners taken in Afghanistan.  It also includes prisoners taken in Iraq, detainees taken in Iraq, which we can argue about, which the lawyers in the room may think should not be put in this world.  I think they should be because of the indeterminateness of their status, as proved by Abu Ghraib, essentially. 

Now, I said a second ago that this category that Agamben was referring to, set up by the military on November 13th, tends to expand.  And one of the obvious expansions has to do with, obviously, the Padilla case, in which a U.S. citizen was subject to such rules.  And as Padilla himself, or his lawyers said in what should be obvious, in his habeas corpus petition, Padilla is not an enemy combatant.  He has never joined a foreign army.  He was not arrested on a foreign battlefield.  He was arrested in a civilian setting within the United States.  Padilla carried no weapons or explosives when he was arrested.  He disputes the factual allegations underlying the government's designation of him as an enemy combatant.  Now, finally, he is being switched to a civilian court, over the objections of the Court of Appeals, among others. 

Now, I said at the beginning that it seems to me that the case of torture, which is what has brought us all here, strikes me as the kind of ultimate case, the key case of the state of exception, because it essentially represents the complete deprivation of an individual of his human rights, of his right not to have his person violated.  And it seems to me that some of the activities I just cited, particularly those at the Swedish airport and others I'm going to talk about in a second, show that we are at the absolute utter end of the spectrum here, that is, individuals have been stripped of the things that make them people, which is partly their right not to be violated.  

Let me talk a moment about what exactly was done at Abu Ghraib.  I pondered this a little bit beforehand, because it seemed to me that many of you here are probably familiar with this, but I think it's absolutely necessary to know what we're talking about.  I'm going to read here the testimony of Detainee 7, which has been public since June of 2004.  This is one of the depositions taken of those detainees who had been tortured at Abu Ghraib.  Well, let me read what his words were. He was an intelligence hold, that is, he was arrested and detained because the occupying forces, the American forces in Iraq, believed that he had information to give them about the insurgency. 

"The first day they put me in a dark room and started hitting me in the head and stomach and legs.  They made me raise my hands and sit on my knees.  I was like that for four hours."  That's a stress position, as it's called, as many of you know from the literature.  "Then the interrogator came, and he was looking at me while they were beating me.  Then I stayed in this room for five days naked, with no clothes.  They put handcuffs on my hands and they cuffed me high for seven or eight hours."  Another stress position, which is very common in these depositions.  It's a way to put the prisoner up on his toes and to put pressure on the shoulder.   

"That caused a rupture to my right hand, and I had a cut that was bleeding and had pus coming from it.  They kept me this way on 24, 25 and 26 October."  This was 2003.  "And in the following days, they also put a bag over my head, and of course this whole time I was without clothes and without anything to sleep on.  And one day in November, they started a different type of punishment where an American police came to my room and put the bag over my head" — the hood, he's talking about — "and cuffed my hands and he took me out of the room into the hallway.  He started beating me, him and five other American police.  I could see their feet only from under the bag."  The hooding, the phrase for it in the literature, in the documents that many of you are familiar with, is sensory deprivation, right?  You cover them, among other reasons, to make the beatings more effective, because they don't know when the blows are coming. 

"A couple of those police, they were female, because I heard their voices, and I saw two of the police who were hitting me before they put the bag over my head.  One was wearing glasses.  I couldn't read his name because he put tape over his name.  They made me sit down like a dog.  They would hold the string from the bag and they made me bark like a dog, and they were laughing at me.  One of the police was telling me to crawl in Arabic, so I crawled on my stomach, and the police were spitting on me when I was crawling and hitting me.  Then the police started beating on my kidneys.  They hit me on my right ear and it started bleeding.  I lost consciousness."
  And there's a passage in here in which the ear is essentially torn off and one of the interrogators — excuse me, the military police — comes in and sews it back on in the cell. 

"A few days before they hit me on my ear, the American police, the guy who wears glasses, he put women's underwear over my head.  Then he tied me to the window that's in the cell with my hands behind my back until I lost consciousness."
  Again, a stress position designed to put pressure on the shoulders, which you find in torture all over the world, this notion of pulling back.  It's very common. 
"When I was in Room 1, they told me to lie down...They told me to lay down on my stomach.  They were jumping from the bed onto my back and my legs.  The other two were spitting on me, calling me names.  They held my hands and legs."
"After the guy with the glasses got tired, two of the American soldiers brought me to the ground, tied my hands to the door while laying down on my stomach.  One of the police was pissing on me and laughing at me.  The soldier and his friend told me, in a loud voice, to lay down, so I did that, and then the policeman was opening my legs with a bag over my head, and he sat down between my legs on his knees and I was looking at him from under the bag.  They wanted to do me, because I saw him and he was opening his pants, so I started screaming loudly, and the other police started hitting me with his feet on my neck, and he put his feet on my head so I couldn't scream.  And then they put the loudspeaker inside the room, they closed the door, and he was yelling into the microphone.  Later they played music through these loudspeakers."
  This is called, again in the documents, the use of noise to induce stress. 
"They took me to the room and they signaled me to get onto the floor.  One of the police" — this is over, obviously, several days — "and one of the police, he put part of his stick that he always carried inside my ass.  I felt it going inside about two centimeters, approximately.  I started screaming.  He pulled it out, he washed it with water inside the room.  Then the two American girls" — there were women present during this particular session, female soldiers — "then two American girls that were there when they were beating me, they were hitting me with a ball made of sponge on my dick.  When I was tied up in my room, one of the girls with blonde hair, she's white, she was playing with my dick.  They were taking pictures of me during all these instances."
That's a shortened version of what happened to Detainee 7, who was an intelligence hold.  In other words, he wasn't a common criminal, he was somebody who they wanted to get intelligence information out of. 

Let me read you one other account, because it's one that's not been publicized very much.  I've written about it a little.  It has to do with a few reporters from Reuters who were arrested near Fallujah in January of 2003.  They had full documentation.  They had press cards, they had cameras, they had worked in Iraq for a long time, and their bureau chief called up as soon as he learned they were arrested, which is instantly, said these were reporters.  Let me read what happened to them.   

"When the soldiers approached them" it says they were standing outside their car.  "They were outside their car, a blue Opel.  Salem Uraiby, who'd worked for Reuters as a cameraman for 20 years, shouted, 'Reuters, Reuters!  Journalists, journalists!'  At least one shot was fired into the ground close to them.  They were thrown to the ground and soldiers" — this is American soldiers, obviously — "placed guns to their heads.  Their car was searched.  Soldiers found their camera equipment and their other press badges" — they were wearing some as well — "and discovered no weapons of any kind.  Their hands were cuffed behind their backs and they were thrown roughly into a Humvee where they lay on the floor.  Once they arrived at the U.S. base" — and this is a forward operating base near Fallujah called Volturno.  I've been on this base.  It is not an interrogation spot at all.  It's not a prison, no professional interrogation is done there.  You have intelligence officers, obviously, because they're everywhere, but this is not their main job, doing interrogation, which I think is important.   

"They were kept in a holding area with around 40 other prisoners in a large room with several open windows.  It was bitterly cold."  This is January, remember, so it's below freezing. 

"Bags were ultimately placed on their heads and taken off again.  Deafening music was played on loudspeakers directly into their ears, and they were told to dance around the room.  Sometimes, when they were doing this, soldiers would shine very light flashlights directly into their eyes and hit them with the flashlights.  They were told to lie on the floor and wiggle their backsides in the air to the music.  They were told to do repeated push-ups and to repeatedly stand up from a crouching position and then return to the crouching position.  Soldiers would move between them."
  So you have a bunch of people doing this in a freezing cold room to very loud music, at night. 

"Soldiers would move between them whispering things in their ear.  Salem says they whispered that they wanted to have sex with him, and were saying, come on, just for a few minutes.  They also said he should bring his wife so they could have sex with her.  Soldiers would whisper in their ears, one, two, three, and then shout something loudly, right beside their ear.  All of this went on all night.  Ahmad said he collapsed that morning.  Sattar said he collapsed after Ahmad and began vomiting."

"When they were taken individually for interrogation, they were interrogated by two American soldiers and an Arab interpreter.  All three shouted abuse at them.  They were accused of" — remember, these people are completely documented, okay — "they were accused of shooting down the helicopter.  Salem, Ahmad and Sattar all reported that for their first interrogation, they were told to kneel on the floor with their feet raised off the floor and with their hands raised in the air."
  So they're kneeling with their hands up and their feet back, which, of course, you cannot do for very long, for more than a few minutes. 

"If they let their feet or hands drop, they were slapped and shouted at.  Ahmad said he was forced to insert a finger into his anus and lick it.  He was also forced to lick and chew his shoe.  For some of the interrogation, tissue paper was placed in his mouth, and he had difficulty breathing and speaking.  Sattar, too, said he was forced to insert a finger into his anus and lick it.  He was then told to insert this finger in his nose during questioning, still kneeling with his feet off the ground and his other arm in the air."
  Imagine that for a second. 
"The Arab interpreter told him he looked like an elephant.  Ahmad and Sattar both said that they were given badges with the letter C on it.  They did not know what the badges meant, but whenever they were being taken from one place to another in the base, if any soldier saw their badge, they would stop to slap them or hurl abuse."

Has anybody heard that before, that account before?  Oh, okay, well...  It's interesting to me for a number of reasons.  First of all, that it didn't happen at Abu Ghraib or one of the prisons.  Secondly, that when we look at this kind of behavior, and compare it to Detainee 7, you can see the outlines of several common threads in each of them.  And I think it's important, and one of the reasons why Abu Ghraib has departed from the scene, in a way, that is, why Abu Ghraib could be dismissed by the Administration as the actions of a few bad apples, which is the classic defense governments use against torture, is that the activities seem so plainly sadistic, so plainly grotesque, so plainly outrageous.   

In fact, however, if you compare these things, and you compare many of the cases that very many other people in this room have done, you see that there's a logic to it.  Common to these things, obviously, are stress positions.  Common to them is sexual threat and sexual violation.  Common to them is the notion of shame, usually some kind of sexual shame, very often nudity.  And common to them are basic techniques like use of noise, sound, sleep deprivation, which we see in both of these cases, keeping people up all night, and trying to, obviously, break them, reach a point where, in fact, they are vomiting or they are losing consciousness.   

Abu Ghraib is a strange case because it is mixed up with a lot of sadism, there's no question about it.  It is, in a sense, a kind of heterodox case, and the Administration has made much of the fact that this was — what's the word — this was Animal House on the night shift, in the words of James Schlesinger, who wrote one of the reports.  And that phrase, by the way, is not in the report.  This is something he said when he introduced the report to the press.  The fact is, though, that you see the outlines in Abu Ghraib of kinds of interrogation techniques that have been developed over the last 30, 40 years by the CIA.   

I'm not going to say a lot about this because I know that there are various people, or a lot of people in the room know about it.  But let me at least say a little.  Does anybody know about the five techniques?  Yes, Jeremy Waldron would.  Him being a Commonwealth citizen or subject.  The five techniques is a method of interrogation in-depth, as it's called, interrogation in-depth, that the British developed in the sixties, and it was finally used during Operation Demetrius in Northern Ireland in 1971.  The techniques themselves — well, let me just say a few of them — were essentially, the key thing was they would put hoods...   

The five techniques were sensory deprivation through hooding, wall standing, subjection to noise, in this case extremely loud hissing noise, so extremely aggressive white noise so you couldn't hear anything else.  One of the victims of this described it as, as if a very loud pipe was very close to his head.  And this is unremitting, it simply continued.  Deprivation of sleep and no food and drink.  Those were the five techniques.  And these people were put against the wall leaning forward.  They could neither stand up nor rest, hood over their head, extremely loud noise, no sleep, no food or drink.  And in a period of 24 hours or more, essentially they were rendered, as a psychiatrist who studied them afterwards, during the case with the European Commission of Human Rights, found that several of them had become psychotic.   

The five techniques together — and that's one of the important things about discussing torture, that a key to it is combining the techniques — can produce psychosis in very short order.  And the CIA, the definitive book on this is A Question of Torture, which is coming out by Alfred McCoy sometime this month, I think.  The key to these methods of interrogation in-depth is that you are able to produce very dramatic results very quickly, and it has to do with combining these various techniques.   

There are two strands running through all of these kinds of tortures.  One has to do with dislocation and sensory deprivation, which is one of the reasons — you know, the times I've been to Iraq, one of the most striking things that you hear from journalists is, why, when they arrest somebody, the Americans, why do they run into the house like gangbusters at 3:00 in the morning, smash everything, take these people out in hoods, and do it in the most disruptive, loud, and frightening way possible?  And Iraqis, needless to say, ask this of American reporters a lot: why does the American military operate this way?  Well, because it's to start the interrogation process in a place of utter dislocation.  The hooding, the shouting, the breaking, all of it is the beginning of the interrogation itself. 

So part of it is dislocation and sensory deprivation.  The other key part under this interrogation in-depth is guilt, the inducement of guilt, which is, in the phrase of McCoy, "self-caused pain."  Thus, the leaning against the wall, thus, the insertion of the finger into the anus, thus all of these things that are done in such a way, or and thus stress positions, that the effectiveness of pain, if it's caused by the individual themselves, increases the sense of guilt and leads them to break more quickly, leads to psychosis and leads them to break more quickly.   

And all of this stuff has been in the public realm for quite a while.  The most famous — there are two manuals.  One is called The Kubark Counter Resistance Strategy Manual, which is dated 1963.  It's from the Central Intelligence Agency.  The other is The Human Exploitation Manual, dated 1983, and picked up, among other places, in Honduras, used by armed forces, or intelligence agencies throughout Latin America, and developed originally by the Central Intelligence Agency.   

From that manual:

"When a questioner uses threat, it should always be implied that the subject himself is to blame, using words such as 'you leave me no other choice but to.'  He never should be told to comply or else.  Arrest time should be selected to achieve surprise, a maximum amount of mental discomfort, cause him to experience intense feelings of shock, [in]security and psychological threat."
These are called noncoercive techniques. 

"Including persistent manipulation of time, retarding and advancing of clocks, serving meals at odd times, disrupting sleep schedule, disorientation between night and day, unpatterned questioning, nonsensical questioning, shouting, ignoring halfhearted attempts to cooperate,"
which is one of my favorites.   

"Rewarding noncooperation.  The purpose of all coercive techniques is to induce psychological regression in the subject by bringing a superior outside force to bear on his will to resist."
Psychological regression.

"The subject suffers a loss of autonomy, a reversion to an earlier behavioral level.  There are three basic coercive techniques: debility, disorientation and dread,"
the three Ds.
"For centuries, questioners have employed various methods of inducing physical weakness.  While disorientation can destroy his capacity to resist, sustained dread also induces regression.  The torture situation is an external conflict, a contest between the subject and his tormentor.  Pain inflicted on the victim from outside himself may actually intensify his will to exist.  If he feels he is inflicting pain on himself, he is more likely to sap his resistance,"
which is the rationale behind stress positions and behind having him do these things to himself.   

The point is that when you look at these procedures that the military did at Abu Ghraib and elsewhere, we see a logic behind it mixed with the sadism of the particular occasion.  We also see, when we look at what we know of the CIA's particular interrogation techniques, which have been made public recently, that the one that's gotten the most publicity is waterboarding.  But, in fact, there are six major techniques which a very interesting piece from ABC News told us about.  They include the attention grab, the attention slap.  The attention grab is the interrogator forcibly grabbing the shirt front of the prisoner and shaking him, which is also a technique that was a favorite of the Israeli Shin Bet until it was forbidden by the Israeli Supreme Court in '99, although it may still be being used, shaking them violently.   

Attention slap, an open hand slap aimed at causing pain and triggering fear; the belly slap, a hard open handed slap to the stomach.  The aim is to cause pain, but not internal injury.  And then long-time standing.  This technique is described as among the most effective.  Prisoners are forced to stand handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours.  Exhaustion and sleep deprivation are effective in yielding confessions.  This was also a specialty, by the way, of the KGB, which was studied, these techniques were studied by the CIA in the late fifties and early sixties.   

You know, forced standing is something that I feel very close to somehow, partly because Donald Rumsfeld, as many of you know, famously wrote at the bottom of the document on December 2002 in which he approved 16 techniques beyond the 17 supposedly approved by the military — this was rescinded six weeks later — but he wrote at the bottom of this document in his handwriting, however, this revision of the intelligence guidelines approved standing for four hours, forced standing, although there's a lot of evidence that people are made to stand for longer than that.  He wrote, "However, I stand for eight to ten hours a day.  Why is standing limited to four hours?"  This is under his actual approval of the technique.   

And, you know, I've found again and again going into this a kind of, what we could call a failure of empathy.  [Laughter.]  We were talking at dinner, or I was talking at dinner with Scott.  I was describing this debate I had with John Yoo recently, or last spring in which I actually read — it's the other time I read Detainee 7, that statement, and tried to trace the actual legal decisions, or the legal judgments, I should say, that would have made legal, supposedly, many of the things that were done.  And John Yoo, in his response, said that was appalling that you read that; all of those things are plainly illegal.   

And it's a fascinating thing that you find with public officials, that they will approve things and basically try to keep themselves from knowing or understanding the implications of what they have done.  And my other impression in this debate with John Yoo was that he hadn't read any of the reports.  Maybe that's not true, but I certainly had the impression he hadn't read the report, he hadn't read the Schlesinger report.  And only afterwards did I realize that some of the things he said were inconsistent with actually having read the reports.   

Anyway, I think of Rumsfeld because a famous CIA report on Soviet techniques, among other things, talks about standing, forced standing.  "Another form which is widely used is that of requiring the prisoner to stand throughout the interrogation session, or to maintain some other physical position which becomes painful.  Certain positions, of which the standing position is one, produces impairment of the circulation.  Many men can withstand the pain of long standing, but sooner or later all men succumb to circulatory failure."  And remember, we're talking here about 40 hours the CIA has approved, according to their guidelines.  "After 18 to 24 hours of continuous standing, there is an accumulation of fluid in the tissues of the legs.  The dependent edema is produced by the extravasation of fluid from the blood vessels.  The ankles and feet of the prisoner swell to twice their normal circumference.  The edema may rise up the leg as high as the middle of the thigh, the skin becomes tense and intensely painful, blisters develop which break and exude watery fluid, etc."   

You know, this is a very — stress positions, standing in particular, are incredibly painful things to make people do.  And when we go through these documents, I think the notion of empathy, of trying to understand what the situation might be like of wearing a hood for 72 hours, which was also approved, of being kept naked indefinitely, all of these things which might seem — and when we think of talking to our fellow citizens about this, which might seem not that bad.  After all, we're not gouging out eyes.  After all, we're not roasting people over spits.  That one of the remarkable things that I think I've learned since Abu Ghraib, since the exposure to the photographs, is that people are quite willing, partly because they don't want to imagine what it's like, to draw their boundaries very far from what I certainly would consider humane treatment.  And you see evidence of that throughout many of these documents. 

All right, my time is...or the time is growing late, and we want to have a discussion here.  Okay.  Well, I tried to make the point at the beginning that I think we've entered an interesting, encouraging, but also perilous time, because the various attributes of the state of exception are coming into, to some degree, into political focus.  It is encouraging that finally we might have some kind of political fight over this.  It's perilous because it's very clear that the Administration intends to vigorously fight back.   

And there is a quotation which I think I have somewhere, and I won't try to find it, but it's in the National Security document of 2005 in which the Administration says that our enemies will continue to make use of strategies of the weak against us, including judicial processes, international law and terrorism.  I want to say that again.  Excuse me, international fora, judicial processes and terrorism.  That is, their view of international law is essentially something that limits the power of the United States.  And in that view they are joined by a great many Americans.   

As the Iraq war was approaching, in January 2003, I had a debate in Berkeley, California with Christopher Hitchens, the first of what would be six debates that he and I had over the next few months about the war.  And people had said beforehand to me, you know, this is going to be easy, this audience is going to be extremely sympathetic to your view, which is that the war was a foolish and wrong idea.  I was dubious about that.   

And I found a fascinating thing that happened in front of those 3,000 people gathered together in Berkeley, which is that when Christopher made a statement that was completely misleading about 9/11 — Osama bin Laden had struck us and we have to strike back, it was almost that simple, completely eliding, as the Administration did, very cleverly, Iraq and Al Qaeda, completely eliding that, there was this enormous roar from the hall.  Not everybody, of course, but from the, what I took to calling the frat boy section in the middle of the hall.  And went like this, "MMMMM!"  Like that, something very fundamental in people that power, our power has been threatened.  The gloves have to come off because the gloves are something, essentially, that we put on as a decoration, something that makes us look better, but that, in fact, at the end of the day, is a kind of luxury.   

I think in the end that this campaign that we're embarked on tonight is so important because I think the religious community is uniquely situated to argue the question of torture and other attributes of the state of exception in the way that's most important and I think most fundamental, which is that torture is wrong, and that torture conflicts, fundamentally, with Enlightenment values and with the values on which this country was constructed.  Now, that's a cliché.  That's a cliché.  You could go into — and I won't, in front of this audience or with these respondents — you could talk about Kant and the notion that, his central notion that human beings must always be subjects, they can never be objects.  They must always be ends and never means.   

And you can say that one of the things that horrifies us so much about terrorism is its gross upending of that principle.  That is, when those 19 men, on September 11th, flew those airplanes into the World Trade Center and the Pentagon and into that field in Pennsylvania, they were trying to create a spectacle that, at least in my view, was almost a recruiting poster for the Jihadist cause.  They were using those 3,000 people who died as absolutely means.  They didn't exist.  They were simply tools to achieve something else.  They weren't even trying to kill them in the sense in which you're trying to kill somebody during a war.  They were a way to produce something else, which strikes me as the most basic undermining of the principle that human beings can never be means, that they must always be ends.   

But torture, it seems to me, has that in common with terrorism.  And one of the reasons that I tried to begin, or I wanted to begin with that Swedish example is because that notion of slicing the clothes off somebody who doesn't represent a threat, who has handcuffs on, forcibly inserting a suppository to drug them, putting diapers on them seems to me such a dramatic, even more than the [foray] into torture itself, such a dramatic denial of what we — I hate to use this word — but of their personhood, of something very fundamental.  And it's the gateway into what I think of, anyway, as the totalitarian power of the state.  It's something that was denied by this country, the very essence of liberalism.  Liberalism essentially is about limiting the power of the state, and torture is about the ultimate, final power of the state.   

And it seems to me that making this argument, as I say, is particularly, falls particularly easily to the religious community.  I cringe when liberals will say torture doesn't work.  You know, it's true that in a lot of — it probably doesn't work.  But I'm not sure that the practical argument is the one...I said to Scott at dinner, whenever I hear that argument I think somebody's going to show up and say, "Hey, torture did work.  I just did it and it was incredibly effective."  That making the practical argument, or even making the political argument, which is that it hurts us in the political battle in which we're now engaged, that if Iraq, as the Administration claims, was partly about causing political changes in the Middle East and giving political hope to young men, as Condoleezza Rice said, who will no longer fly airplanes into buildings in Washington and New York, it was giving this idea of the hope of democracy, then torture is the absolute denial and opposite of that, of course. 

I'm going to finish now, but I want to...I'm sorry about all these quotes, but so many people say it in so much better ways than I do.  Is anybody here familiar with the book The Interrogators?  I'm sure there must be people who know it, Chris Mackey.  I think it's a remarkable book, not unflawed, but a remarkable book that everybody should read.  He describes his first few months in Afghanistan as an interrogator, not long after 9/11.  I think he got there in December 2001 or January 2002.  As the book is going to print, Abu Ghraib happens.  Abu Ghraib is the moment where torture becomes televisual, right?  It suddenly attracts the attention of the country, and then, to some degree, it slips back into the darkness when television ends its interest in it, and also after very clever damage control by the Administration, brilliant damage control. 

So here's Chris Mackey, he's written this book, there's this stuff happening, he has to do an epilogue.  He writes that he was shocked when he saw these documents.  It allowed, he says, the documents, for the use of military dogs in the booth, allowed prisoners to be put on sleep deprivation for up to 24 hours, allowed sensory deprivation, which meant keeping prisoners hooded, etc.  This is a guy who spent the last nine months of his life interrogating the "worst of the worst," quote, unquote, before these people were put on the plane to Guantanamo.   

He says,

"Each of these methods went well beyond anything we allowed at Bagram, where we were not technically bound by the Geneva Conventions, but understood from the beginning that we were to behave as if we were.  We agonized over how far we could go, conducting elaborate rules and rationales, and coming up with the most menacing name we could think of, monstering, for a sleep deprivation technique that looks meek by comparison to the methods interrogators were authorized to use in Iraq.  In Afghanistan," he says, "we'd been left largely on our own to sort out the ethical boundaries of our job, but in Iraq, harsh interrogation methods were approved at the highest level by Lieutenant General Ricardo Sanchez and other senior officers.  It made our hand wringing seem either silly or unintentionally enlightened then."

"The gravitational laws that govern human behavior when one group of people is given complete control over another in a prison, and every impulse," he says, "tugs downward.  We had seen it in our unit in Afghanistan.  The prohibition on the use of stress positions early in the war gave way to policies allowing their use to punish prisoners for disrespectful behavior.  The rules were relaxed, however, by those who followed us at Bagram, and within a year stress positions were a formally authorized interrogation technique by the command in Iraq.  Rules regarding sleep deprivation, isolation, meal manipulation, sensory deprivation followed similar trajectories, which is a downward pull.  We saw firsthand in Afghanistan how effective" — and here is where I think his book is very important — "we saw firsthand in Afghanistan how ineffective schoolhouse methods were in getting prisoners to talk.  That is, using the approved method is hard.  A lot of these people had been trained to resist it.  We failed to break prisoners who I have no doubt knew of terrorist plots or at least of terrorist cells that may one day do us harm."

Charles Krauthammer would call these "slow fuse detainees," that is, after you get by the ticking bomb detainee, you can torture the slow fuse detainees.  They might know about something, which is one obvious problem with the ticking bomb that everyone is so, including popular culture, so in love with; it doesn't limit the situation at all. 

"Perhaps they would have talked if faced with harsher interrogation methods.  On the other hand, one of the most profound tragedies of Abu Ghraib is that the images of depravity will inflame anti-American sentiment in the Muslim world for a generation, driving who knows how many would-be Jihadists into the ranks of Al Qaeda and other terrorist organizations."

Now, he talks about pain here, and he talks about the argument "the familiar refrain, the harsh treatment of prisoners only produces bad intelligence, that a tortured prisoner will say anything to stop the pain."  He says,

"If a prisoner will say anything to stop the pain, my guess is he will start with the truth.  Our experience in Afghanistan showed that the harsher the methods we used, though they never contravened the Conventions, let alone crossed over to torture" — he's talking about early in Afghanistan — "the better the information we got and the sooner we got it.  Other agencies seem to have learned the same lesson."  He's saying that pain does work.  "The reason the United States," he says, "The reason the United States should not torture prisoners is not because it doesn't work.  It is simply because it is wrong.  It dehumanizes us, undermines our cause, and over the long term, breeds more enemies of the United States than coercive interrogation methods will ever allow us to capture."

I think that's just right.  And I think, as I said, the religious community it extremely well placed to make that argument, that it is just wrong. 

And, you know, when I came up with the title for this — and there is such a lot more to say, and I have three more pages here — when I first came up with the title for this with a friend of mine, she said, you know, you love "Fidelio," and I do, I love that opera.  I saw that opera in San Francisco right after Abu Ghraib, right after the photographs came out.   

And there's a scene called the Prisoners' Chorus in which the prisoners come out of the prison into the light, into the light of day.  And it's a great kind of ethical moment in history in which prisoners came out of the light, out of the world of despotic power into the world of liberal limitations on the state.  Beethoven thought the way to find that was with a benign and limited ruler — a benign ruler, excuse me, who would place limitations on his own power and also open the way to men of talent who would knock down the old authoritarian order.   

There is a wonderful exchange in it, in the first act, in which Leonora, aka Fidelio, the woman dressed as a man, who's looking for her lover who's imprisoned deep in the heart of the prison, says to the jail keeper, "How long has he been a prisoner?"  This is Fidelio, her husband, who's kept in sensory deprivation, no light, very little food, deep in the heart of the prison.  "How long has he been a prisoner?" she asks.  "Two years," is the response.  She says, "Two years.  He must be a great criminal."  And the response is, "Or he must have great enemies."  She's describing law, her interlocutor, the keeper of the jail, is saying, no, no, no, this has to do with power.   

And the Prisoners' Chorus is about the exit, it seems to me, from that particular world of power, of darkness, into what we hope became our own age, which is into the light of day.  And that image from the Stockholm airport strikes me as the complete opposite of that, that we're moving backwards in history, in a different direction.  And that's the thing, I think, that we have to fight, however hard it's going to be, because it will be very hard, we have to fight against.  Thank you.  [Applause.]

Mr. Moore:  Thanks very much, Mark.  And just before calling on our first respondent, I just want to mention that Mark's book, Torture and Truth, is on sale in the lobby for $20 at the registration table.  And if you can stay for a minute afterwards, maybe you can get Mark to sign it, even.  Let's hear from Scott Horton, a human rights lawyer from New York City.  He asked for a simple introduction, so there it is.  [Applause.

Mr. Scott Horton: Thank you very much.  I really want to thank George and Bob and everyone else who set up this conference.  I think what you're doing is — it's half [inaudible]. Let me say that first, and it's tremendously important, and I'm honored to be able to play a very modest role in this.  And also, I want to say I'm very honored to be invited to comment on Mark Danner and his presentation here.  I think Mark has really played a unique role in this entire affair.  And sometimes he modestly describes himself as a journalist, but he's so much more than that.  But first of all, he's a true journalist of a sort that seems to be disappearing from this profession today.   

I remember growing up, in the 1970s, reading tremendous pieces of exposé journalism.  I remember this as the pride of the United States and its journalistic tradition, and something has happened to this country.  I mean, it seems almost to have disappeared, and we have very, very few people who continue to work in that tradition.  I think Seymour Hersh is one, but Mark Danner has made the most impressive contributions of any — and not only does he approach the facts with just a beautiful simplicity of exposition, one in which the honesty of the facts sees through, but he also probes the moral questions that lie underneath, and I think that's a profoundly difficult thing for a journalist to do.  And I can only think of one that I read regularly today who does it successfully, and that's Mark Danner.   

And I also want to say I'm really honored to appear between Mark and Jeremy Waldron, from Columbia, who I think is an absolutely brilliant scholar.  And I just finished reading Jeremy's book about Locke, and it made me think about when I had read Locke's treatises back when I was an undergraduate and had been completely baffled by all of those theological discussions.  And after reading Jeremy's book, I felt I actually understood it for about 15 minutes.  [Laughter.]   

I think what we've heard today is very, very important, and in a sense, it really comes to a reframing of the debate, and it's a reframing that's past due now.  We've dealt with this issue complex for more than a year as the torture debate, and I know going back for some time, a number of my friends have challenged me, is that what it's really about?  Isn't torture just the flip side of another issue?  And I, and I think a number of others, have resisted that broader politicization of the torture issue.  And that was a mistake.  That was clearly a mistake.   

And I think Mark Danner evoking this really fascinating image, into the light of day, and he really has — it's true, we are not moving, as a country, into the light of day, we're moving into the darkness.  But on the other hand, he is bringing this issue into the light of day, and I think he — he set out saying that he would define the state of exception, and I think what he's done is a very important step towards exactly that, redefining it.   

And I came to the same conclusion myself.  In fact, we were discussing it over dinner this evening.  And I know this just going back to the beginning of this conference.  Actually, if you think about it, every one of the panels we have is pointing towards this redefinition of the question, towards a focus on this state of exception.  I think the 9/11 constitution was the term that was used by [Karen Greenberg] this morning.  And I think this is an immensely important way of viewing it.   

Now, myself, I come to this conclusion through, first of all, having lived through the efforts to enact the McCain Amendment, and witnessing, on a couple of occasions up pretty close, the vehement response that this drew from the Administration.  And the fact that this response is coming directly from the Vice President of the United States, Richard Cheney, and his chief of staff, current chief of staff, since his prior chief of staff, of course, has been indicted.  But before he was indicted, he was also deeply engaged in the issue.  And also from the Secretary of Defense, Donald Rumsfeld.  They viewed this matter as tremendously important.   

Dick Cheney was spending hours a day on the phone trying to lobby senators.  And by the way, I can report that many of us who worked on it considered Dick Cheney to be probably our second most effective lobbyist, because he succeeded over and over again in really turning people off, he was so aggressive.  And that's particularly the case with Republican senators, I should say.  But nonetheless, it was clear that this was something vitally important to him.  Why?  Interrogation techniques?  Why would this be vitally important? 

Then we see the development of wiretapping, the NSA roaming searches story, which is really, it comes from the same parcel.  It is, in terms of the legal and political justification, closely interrelated.  And third, I think something else we should really focus on, and that is the Supreme Court, because we've had three nominees in rapid succession: Roberts, Miers, Alito — an alumnus of this school — and in each of these cases, one thing we can say is consistent is the fact that each of these nominees embraced a rather extreme view of the powers of the Presidency quite clearly played a focal, and perhaps the focal role in the selection of the nominee.  So again it shows a very strong focus on this question.   

So I think in my  mind, it's really quite clear now that the torture issue is an aspect of a larger complex, and the best way to address this now is as a state of exception.  We might also call it a constitutional crisis for this country, because it shows the embrace of a radical reconstruction of our Constitution, one in which, as I recall, recently presented by a professor at Yale, the Constitution has been reduced to one clause, which is the Commander in Chief clause.  Someone actually graphically reproduced it that way.  And I think there's much to that.  I mean, it's quite clear that in the view of this Administration, that clause, in times of war, trumps everything else — congressional power and authority and that of the courts.   

And that raises the question, I think, quite directly: what have we given up in embracing the idea of a global war on terror?  There's a debate that we needed to have had about this rubric that we, in fact, never had in this country.  And I'm not saying that there was absolutely no discussion, because I know there were some intellectuals, there were some academics, there were even military officers who raised a point of caution very early on about the notion of viewing this campaign against Al Qaeda as a war, much less as a global war.  And I think we're seeing now quite clearly what it is that we're forfeiting by embracing this rubric.   

And yes, I will talk a little bit about Carl Schmitt, but since the hour is late — I'm not going to read from that book.  And in fact I think the line, the Schmittian line that most needs to be noted is the one that, in fact, Mark quoted already.  "Sovereign is he who controls the exception."  In fact, I think the first sentence of his book on political theology, a quite striking notion, focal to Schmitt's thought overall — Carl Schmitt, probably the most important German legal scholar in the period between the wars, highly problematic figure.   

I hesitate to talk about Carl Schmitt here in Princeton, because I think you have the most important scholars in the United States writing on Schmitt here today.  And one thing I'll tell you is, don't buy that book.  Don't read it.  Instead, if you really want to get a little bit more background about Carl Schmitt, read Jan-Werner Muller's book A Dangerous Mind, which is really a brilliant exposition of Schmitt's thinking and the shortcomings of that thinking.  Besides, it's in English, a big advantage. 

In any event, we need to start with the recognition of the fact that Schmitt was no great fan of democracy.  He's someone who had a longing for the old Wilhelmian notion.  And although he said, in his political trinity, that the hope of modern society lay in nationalism, universal conscription and democracy — democracy comes last, after all — and democracy is in a form that we probably wouldn't really appreciate as democracy.  But I'm convinced that Dick Cheney would call it that.  So we have a very weak embrace of democracy.   

He was concerned that society, European society in particular, in the 20th century, faced a tremendous threat from both the left and the right, from the Communists and the Fascists, although he subsequently did get a Nazi Party card, by the way, so in the end he decided that they were clearly the less revolting of those two options.  And he was concerned that there be a strong executive who was in a position to deal with these two threats from the periphery.  So the idea of a balance of powers between a judiciary, a parliament, and an executive was liberal foolishness, in his mind.  The powers of the executive had to trump — and key in this quest, in his mind, was finding a state of exception that would permit the exercise of extraordinary powers.  And in fact he brilliantly provided the basis for that out of the Weimar constitution.  And he extrapolated from that the basis of a political doctrine.  The principal work here is the concept of the political. 

Now, if we go in and we start reading particularly the concept of the political, I found it, having gone back and looked at it this summer, I came to say — the three of us have one thing in common, which is that we've all debated John Yoo.  Some of us several times, actually.  And I just had a strange sense in one of my encounters with Professor Yoo — he kept using terms, and I kept thinking, I've heard this before.  Total war.  The friend-foe distinction.  All these terms coming up.  And I kept thinking, where have I heard this before?  Of course it's all Carl Schmitt, Carl Schmitt's writing.  Key ideas.   

Carl Schmitt felt, for instance, that one can most effectively fight a war by demonizing one's adversary, denying the adversary all the attributes of a human being, denying them any protections under the law.  Sound familiar?  And that is — of course he also felt that international law, while important in some senses, did have to be subordinated to the interests of the nation-state, and the executive's interests.  Of course he didn't use the word executive.  The executive's interest in guiding that nation-state and its people had to take precedence, and therefore he would support sort of a niggling reading or a highly contentious reading of treaties and conventions to get to the results he wanted.  And also, who needs symmetry?  That's something for the weak minded.  So he would take the position of arguing for robust protection of the human rights of Germans who lived in Czechoslovakia, but as to other minorities who lived in Germany, they, of course, were entitled to no such protection. 

And this also enters into the area of the laws of war and humanitarian law.  I think they follow.  In fact, it necessarily follows, if you apply this doctrine, that he's going to reduce these rights in times of war.  Now, I think what we've seen in the reception of Schmitt today, as he's being followed and applied, particularly by people who were students of Leo Strauss — and I think this is, by the way, of course Leo Strauss and Carl Schmitt were very close at one point.  Carl Schmitt wrote a major work about Hobbes and quoted works by Leo Strauss in the process.  He actually wrote the support letters that got Leo Strauss his scholarship from the Rockefeller Foundation, and got Leo Strauss out of Germany before the Holocaust.  They had a close, although rather secret relationship, given what was going on.  And this is the path of reception, I think, for Yale conservatives in America today.   

But the point I want to make is that the reception and application of these thoughts has become extremely crude.  So I don't want to suggest that John Yoo is applying Schmittian thought.  Not at all.  It's a highly corrupted version of Schmittian thought.  So for instance, when Schmitt talks about the friend and foe distinction, he says there are grave moral reservations that attend the use of this distinction.  It can be applied only in cases where the life of the nation is clearly threatened.  Very extreme.  Also, he writes that, in fact, humanitarian law is important and needs to be applied, and that there is good benefit that would flow from it.  And I'm talking now about law of war concepts, particularly when dealing with the Western powers.  He had a different idea vis-à-vis the former Soviet Union.   

And his notion of the state of exception also is key to the idea that when it's invoked, it's for a period of exception, and the person who obtains this power doesn't have the right to change the fundamental, underlying system.  Schmitt, when he writes, is filled with citations to Roman historians, to the poet Virgil, for instance, and he's clearly focused, in his thought, about the final days of the Roman Republic, and the occasional use of a dictator who would then have to relinquish his authority.  And I ask if that's exactly what this Administration has in mind, and are we not, in fact, looking at a fundamental change in the constitutional order of the nation.  And with that, I thank you for your patience.  [Applause.]

Mr. Moore:  Thank you.  And last, but certainly not least, Dr. Jeremy Waldron.  [Applause.]

Mr. Jeremy Waldron:  Thank you very much.  It's a very great honor to be on the platform with these two colleagues.  I was blown away by the richness and power of Mark Danner's presentation, The unexpected directions, whether it was "Fidelio" or the riveting story from Stockholm. 

Mr. Danner:  They were unexpected to me as well. 

Mr. Waldron: Yeah, but it was a fabulous enrichment of our understanding of these matters.  I did want to make a very preliminary comment about the five techniques and their use by the United Kingdom in Ireland in the very early 1970s which, of course, was a disgrace.  But it should give us heart, because there was, subsequent to that, a legal campaign mounted in the European Court of Human Rights that elicited from Britain not only a royal commission to establish what had happened, to explicitly address the question of whether the torture was necessary — several royal commissions, I think — an admission by the British government before the European Commission and the European Court of Human Rights that these techniques had been used, that they were authorized, that this was a disgrace, that they would now be discontinued, and that they would, in no circumstances, ever be used again in the future.   

And then notwithstanding that, there was the condemnation by the commission and by the court in the 1977 decision.  So if we want to look at what happens when a scandal doesn't remain frozen, to use that phrase that Mark used at the beginning of his comments, this should give us heart.  It was important that the litigation was initiated by a friendly nation, namely, the Republic of Ireland.   

And we need to remember, if we didn't know already, of course we know that the victims of torture are the loneliest people in the world.  They need powerful friends.  They need all the friends they can get.  This is trivial.  We hope, in our thinking about human rights, that for every Florestan there is a Leonora, whether it's institutionally or personally.  And we know — and this is something I'll come back to at the very end of my comments — that as Christians, we have an obligation in this regard not to turn our back from captives.  We have a direct command to recognize the face of Christ in the most vulnerable of people that we find and visit and minister to in prison.   

And if we cannot literally visit and minister to people in prison, then the initiation of a campaign like this and the listening and the imagery that go into it are among the most important aspects of that obligation that we have.  So that was just a preliminary comment.  Heavens, that's not really a way of cheering us up, but it's a way of knowing that sometimes these things do stop as well as start, sometimes we do come out into the light, and we must have a degree of hope in this regard. 

Now, I'll put aside the 27 pages on Carl Schmitt that I had — [laughter] — intended to use here.  I wanted to make a couple of points, though, about the state of exception, and then part of that was one large point, I think, about law, and then conclude with some remarks about religion.   

Maybe we need for great emergencies, states of exception, and maybe it's a good thing that the human rights documents that we have make provision for a state of emergency threatening the life of the nation, under which condition certain guarantees of human rights may have to be suspended.  It's extremely important that these be seen not as a temporary, but as law governed.  But here's the point that I want to emphasize above all.  The provisions that we have in international law and domestic law for the prohibition on torture and on cruel and inhuman and degrading treatment are, themselves, prohibitions that have been designed for the state of exception.  These are not prohibitions that have been designed for ordinary circumstances, in which we are in a state of peace and tranquility.  They have been set up and designed for the state of exception.   

The international human rights documents that embody them specifically provide that they are not affected by the declaration of a state of emergency, and we must understand them in spirit.  These are prohibitions that are designed for a post 9/11 world.  They are not aspects of the ten to the tenth thinking.  These are specifically designed in a moment of clearheadedness for the very circumstances of fear and panic and terror that might motivate their violation.  So I don't accept that everything is different insofar as these provisions are concerned. 

Mark had lots of quotations, so if you'll permit me one.  A committee of ministers of the Council of Europe, which is the organization responsible for the European Convention on Human Rights, adopted a set of guidelines on human rights and the fight against terrorism in July 2002 which included a reaffirmation of the absolute prohibition on torture, and they said this.  "The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited in all circumstances, and in particular, during the arrest, questioning, and detention of a person suspected of terrorist activities, irrespective of the nature of the activities."  This was specifically designed.  People knew that it was terrorism that would be invoked as a justification for using torture, and it was specifically designed to resist that justification, to bear that in mind in terms of the nature and quality of the law. 

The second point I wanted to make about state of exception is this, and it simply complements what Scott was saying and what Mark was saying.  When we think about the impact of a state of exception, and particularly when we think about the impact of an abusively established state of exception, although our attention is necessarily riveted on the particular abuses that will be involved, although our attention is necessarily riveted on the torture and the sort of abuse that was described to us earlier this afternoon, and then described to us again in the reports that Mark mentioned, and although we must keep that clearly in the forefront of our minds as the evil we are combating, the thing about these states of exception, when they are set up and invoked in this way, is that the impact is not confined to the legal norms that prohibit the torture or the legal norms that regulate the surveillance, or to the right.  The impact of the damage is not confined to those.   

The kind of abuse that we have seen with regard to torture and cruel, inhuman and degrading treatment deals a traumatic shock to the legal system, and we need to think a little bit about that as well, partly because the legal system is the embodiment of the very values that we need in order to fight these things.  But we need to remember, and we need to resist any claim that, well, torture can just be isolated as a special case and put to one side, and we can build a firewall between whatever abuses we're doing there, or whatever abuses we are committing there, and other things that might go wrong in the legal system.  I think we need to understand that when we alter or undermine these prohibitions, we effect a very dangerous and traumatic shock to our law and to our traditions. 

You see, I think particularly in what we have faced in the United States over the last four or five years, we have seen, in relation to the state of exception, not just the sidelining of law, not just the violation of law, not just the marginalization or the pushing aside of law, we've seen not just CIA agents taking prisoners to the waterboards, but there has also been a concerted attempt to drag the law along with them, to drag the law into the torture chamber, to manipulate the law so as to give some cover of legality to these things.  And this is not just a costume that we don't worry about for other occasions.  By dragging the law into the torture chamber, we are doing huge damage to that fabric as well.   

The word torture suddenly starts to become a technical term that you need a dozen lawyers to define.  The prohibitions become weakened and qualified out of all recognition.  The status of the ban on cruel, inhuman and degrading treatment now becomes unclear; we don't know whether it's the law.  Most people in the country don't know whether this is legally prohibited or not.  The status of international law is thrown into wholesale obscurity by all of this.  And the effect is that in the areas of law where we need most clarity, because law has to do clear work in the circumstances most fraught with panic, anger and terror, we have dealt a great blow, if I may mix my metaphors, to any light that law can pass on those circumstances.  The law now relating to interrogation is made to seem much murkier than anyone would have seen it as before 9/11.   

And it goes beyond that.  It goes beyond that to a sort of corruption of the legal system.  There's a wonderful quote.  It's almost my favorite quotation in this whole business.  It's from William Blackstone, who was the great treatise writer on the Common Law from the middle of the 18thcentury.  And in his discussion of torture, when he was trying to explain why torture was contrary to the spirit of the Common Law, notwithstanding its use by the English state on various occasions, he said this about a particular incident.  "Upon the assassination of Villiers, Duke of Buckingham" — this must have been at the beginning of the 17th century. 

Male Voice:  1628. 

Mr. Waldron: 1628.  [Laughter.]  "Upon the assassination of Villiers" — you found that in the book?  In 1628, "Upon the assassination of Villiers, Duke of Buckingham, it was proposed, in the Privy Council, to put the assassin to the rack in order to discover his accomplices.  The judges, being consulted, declared unanimously, to their own honor and the honor of English law that no such proceeding was allowable by the laws of England."   

Now, he's talking about the honor of the judiciary.  And we certainly have seen that honor very seriously besmirched in the persons of Judge Gonzalez, now Attorney General of this great republic, the person of Jay Bybee, nominal author of one of the most infamous torture memos, now a judge on the Ninth Circuit, and in the person of John Yoo, my former colleague at Boalt Hall in California.    

And I take it myself that law teachers have an obligation which is not trivial, but quite profound, to the education of the future generation of lawyers, to present themselves as upholders of the integrity of the law.  Certainly people working in the Department of Justice have the obligation not to behave as though they were counsel to gangsters, but as though they the part of the executive specifically entrusted with the integrity of the law in this most fraught and difficult circumstances. 

So we've seen a degree of dishonor there, but we also have to think about the dishonoring of the law itself, and the corruption of the law itself.  Nobody's ever written on the board during these, but I want to introduce to you a new word which I learned a few months ago, and the word is evoltive.  Some changes are evoltive and some changes are nonevoltive.   

Some of you in the room may have one of those loose-leaf folders with the clip rings, you know, you clip it open and you clip it shut.  And you clip it open and you take out one page, and you close it, that's a nonevoltive change.  It leaves the rest of the object intact.  But if I were to pick up this book and pull out a few pages, it would wreck the spine and some of the other pages would fall out.  That's an evoltive change.  Or in a medical procedure, if I were to try to take somebody's kidney out, an awful lot of tissue would come out with it.  I'm not a tailor.  If I were to try and detach this pocket from my suit jacket, an awful lot of material would come with it.  An evoltive change is a tearing change, a change that rips something out and takes a lot of surrounding tissue with it. 

And it seems to me important to understand that any manipulation of the definition of torture, any establishment of exceptions to the permissibility of torture, any of the sort of messing with the understanding and application of the prohibitions on cruel, inhuman, and degrading treatment of the sort that we have seen don't just represent a tidy detachment of something from the law, they represent an evoltive change so far as the rest of the law is concerned.   

It's partly because the prohibition on torture operates for us not just in its own right to prohibit the straight evil and to provide for its prevention and punishment, that particular set of rules operates not just in its own right to do the primary work that it has to do, but it also does really important secondary work in legal argument as a sort of icon or a sort of archetype of a more general policy that the law has.   

So that when you are — I'm just going to give a couple of examples — when you are thinking about Eighth Amendment issues relating to cruel and unusual punishment, and more generally about constitutional issues relating to the administration of our prisons, people use the prohibition on torture over and over again as a point of orientation.  They say, look, we don't think that the denial of medical care is torture, the denial of medical care in prison, but it's too close to torture, it's too much like torture to be permitted.  They use this as a point of reference for legal arguments, to establish a set of analogies or partial analogies that can try and guide us through our sense of what's important and what's not important in the cases that come before the courts.   

Or in Fifth Amendment jurisprudence, when we're talking about non self-incrimination.  Again, the prohibition against torture operates as a sort of icon or archetype, as a point of reference through which we can evaluate other practices, like, I don't know, compulsorily pumping a suspect's stomach to see whether he has swallowed drugs, or other cases like this.  It's not that we want to identify these as torture, but we want to use the historic certainty that we have that torture, at least, is wrong as a point of reference whereby we can then do some comparisons and analogies with other things that are too uncomfortably close to the rack and the screws in these regards. 

But if we make torture a technical term by defining it out of existence, or if we add a whole series of qualifications to these norms, if we don't have an unequivocal or clear or clarion point of reference to use in those other forms of legal argument, to that extent we have not only conducted the abuse that the torture norm itself prohibits, but we have wrecked the argumentative structure of surrounding areas of law by evoltively tearing out the page and taking a lot of surrounding tissue with it.  And I think that's tremendously important. 

I think the prohibition on torture stands for a certain sort of principle or policy embedded in our law which is something like that.  Law has to be forceful, and law has to be final, and the law has to get its way.  But it will not get its way by savagery or brutality.  It will not get its way by breaking people like animals.  It will not get its way by mutilating the agency of those it deals with.  There are modes of coercion which we know the law has to use.  A criminal is brought into a courtroom whether he likes it or not.  But he's not necessarily herded in with a cattle prod.  A person who has a fine to pay will pay the fine, one way or another, but not by inducing infantile regression through the sort of techniques that Mark Danner was talking about.   

And I believe, in terms of the deep Enlightenment values, the Kantian values, in my view the Christian values to which — or certainly the deep religious values of all the great religions that our law pays tribute to — we have this notion that law will be forceful, but it will not brutalize those that it deals with.  Law will be final, but it will not savage those who it deals with.  Law will, if necessary, be coercive, but it will not attempt to reduce those it deals with to the status of whimpering infants or to the state of shivering, bestial terror that is the upshot of the sort of interrogation that we have heard described at the beginning of this afternoon and at the end of this afternoon.   

If we take away the prohibition on torture, or if we undermine the prohibition on torture as an archetype of that principle, then the principle necessarily becomes damaged and qualified and incapable of doing the work which it needs to do, which is background work helping to inform and organize the rest of the law itself.  Now, I don't think that these consequences are anywhere near as important as the direct consequences to the victims of the interrogation techniques that we are talking about, but they are massively important consequences, nonetheless, because they remind us what is at stake with those victims, which is the most direct assault on the principle of nonbrutality, the most direct assault on the principle that law will maintain some respect for dignity, even when law is at its most forceful and its subjects are at their most vulnerable. 

Taking this away, evoltively tearing this fabric out of our legal system, leaves us equivocal and tongue-tied when we are describing some of the other things that we want to uphold in our legal system.  It's like somebody who says I will accept a bribe, but of course I won't cheat on my taxes, and of course I won't become a shoplifter, and of course I won't become a bank robber.  Maybe some people have the psychological dexterity to maintain that particular combination, but they have deprived themselves of the most precious resource that we use to maintain our honesty, mainly the conviction that there is something in common wrong with bribery and shoplifting and tax evasion and so on.  They have taken away the deep principle that would unite all aspects of their honesty and left their honesty tongue-tied, ad hoc, partial, and damaged.   

And I think we are in grave danger, with this messing with the prohibition on torture, of doing something similar to the principles that our law has historically sought to honor.  Historically not perfectly, but, I mean, it's a process and it's a campaign, but that that's the danger of setback that we face. 

The hour is late and I wanted finally to say a little bit about the role of religion.  I began by mentioning the United Kingdom.  One of the most heartening decisions recently was a decision just before Christmas by the House of Lords unanimously refusing, overturning a Court of Appeal decision, unanimously refusing to allow the continued indefinite detention of people, under the state of emergency, which they have, if that detention is based on evidence which has been secured by torture or might have been secured by torture, even by people from other countries.  Effectively, the British were indefinitely incarcerating a number of people rather in the way that we have done, but they were basing their decisions about who would be incarcerated and who wouldn't be incarcerated on information that might have been obtained by torture not by agents of the British state, but by other states which shall remain unnamed.   

And the House of Lords said of that, and it's a wonderful set of judgments, that to allow such evidence to play any role — never mind trial, this wasn't a trial, this was a role supporting an administrative detention — to allow it to play any role would dishonor the law and defile the state.  And it seems to me that language of that directness is what is needed, not just as cosmetic rhetoric, but by people who have an understanding of the kind of values that are at stake when we talk about defilement.   

And it seems to me religious communities are in a somewhat better position than some of their secular colleagues to understand what defilement means.  If I were to say, for example, that the security, such as it is, which is achieved for us by the use of information gleaned through torture is a defiled good for us, a tainted good for us, and we are in a position to understand that some things which seem like goods may be tainted goods in that sense, because we know that earthly goods are, in a sense, not worth having if serious moral violations have been involved in securing them, so we need to understand this business that these methods might defile the state, corrupt the law and defile and disgrace the security that we seek by these means.  It's not religious rhetoric, it's religious insight.  It's tremendously important, and it needs to be stated very, very clearly indeed, much more clearly than it has been. 

We need to remember also — Sister Ortiz mentioned this earlier this afternoon — that religion is important not only for our understanding of what is at stake in this matter, but that religion itself is sometimes directly at stake in this matter.  I don't mean religiously motivated torture; that's mercifully a thing of the past.  I mean that people's religions are used as a point of vulnerability by their torturers, whether it's the smearing of menstrual blood on a man when it's known that this will stop him praying or the defilement of holy books, or the whispering in somebody's ear that your god has deserted you.  Religion, the cradle of the hopes we maintain in extremis, is well known to torturers as a useful point of access to degradation.  So we need to understand that religion is at stake as a point of vulnerability as well as available and necessary as a point of objection to these practices. 

We know that the sense of these straightforward, simple moral absolutes that Mark mentioned at the very end of his comments, that this behavior, these techniques are simply wrong, whether or not they yield good consequences or not, whether or not they're good PR for democracy campaigns or not.  That these techniques are simply and absolutely wrong, that that cancels the absolute, is something which secular morals find it very, very difficult to sustain.  Most secular moral philosophers will succumb to the ticking bomb hypothetical.  They'll say, well, of course, in those cases, yes, we have to torture, I would be the first to torture in those circumstances.  They don't want to appear overly idealistic.  Moral philosophers — I'm one of them — are very insecure people.  [Laughter.]  You remember that line from "The Godfather," that men in our position cannot be made to seem ridiculous?  [Laughter.]   

And so in inculcating the quiet, firm, clear sense that these things are absolutely prohibited, come what may, and that there are some things of greater moment morally and spiritually than the goods we might secure by these means, or even the evil which we might avert, having that, I think, the clear religious call is necessary.  Or to mention the absolute obligation that I mentioned earlier to attend to the most vulnerable, to visit and minister to the captives, no matter what, as a question of absolute obligation.   

Anyway, the hour is late, but one final point, and it's a point about chronology.  The hour is late.  Mark referred to a story in The Washington Postthat began our concerns about torture in December 2002.  The Abu Ghraib pictures emerged when? 

Male Voice:  In April 2003. 

Mr. Waldron: April 2003.  It is now January 2006.  The churches have been silent too long, or their voices have been muted too long.  Some of them may have had other priorities to deal with which led them to...  But this needs to stop, and silence needs to be broken, and it needs to be broken again and again and again.  So it's hugely heartening.  Thank you very much, indeed.  [Applause.

Mr. Moore:  Thank you so much, Jeremy, for that very engaging response.  I find that we're in a state of exception at this point.  I had hoped that we would have 45 minutes for a discussion, and instead we're already over 20 or 25 minutes past our scheduled ending time.  Would it make sense to have perhaps ten minutes for...?  And then I think we'll wrap up right about 10:00 p.m., so hopefully that's not past the witching hour for too many of you.  So let's just take a few questions, and I'll just get to one, two, three, and I see all the way in the back, and let's pass the mike around. 

Male Voice:  Mark and the others, I certainly resonate to your conviction that we have to stand on the fundamental statement that torture is wrong, and eschew the temptation to take the utilitarian route.  However, I can already hear Dershowitz and the others saying, so, you would let the ticking bomb explode because of your naiveté, failure of nerve and cowardice?  Are these terms familiar from that kind of rhetoric?  I thought so.  Help me out here.  We still have to face these arguments, so just to say we're wrong, we're still going to face that utilitarian ticking bomb argument, what are we going to say? 

Mr. Danner:  I think the ticking bomb argument is a fraud, very much a fraud.  First of all, nothing resembling it has ever happened, but secondly because it assumes the information which we don't have in interrogations, which is to say it assumes where the attack's happening, it assumes this person knows about it, it assumes all of these things that purport to make it a limiting case.  But in the actual fact, there are two very large problems with it.  First of all, it is almost always a way, a strategy to essentially shatter the absolute, that is, if we can shatter this absolute prohibition, it's then a question, as George Bernard Shaw says, and Charles Krauthammer quotes him as saying, it's only haggling about the price.  He says that about virtue and women, actually, if you'll remember.  So this is a way to kind of shimmy your way through that.   

And it's also, there's a dark — I've often thought of this as the dark sort of other side of the categorical imperative.  It's like standing it on its head, you know, to take this one example and universalize it in this way, because it does become universalized very quickly.  Krauthammer's article, which I think is the best of these, if you want to look at the use of the ticking bomb, his article is a very good use of it, and it shows very clearly that what you do is take this case in which a million people will die and then come up with a system in which you're torturing hundreds and hundreds of people, because the premise of limitation that is being set forward, which is we only do this if a million people will die, is itself impractical, but in effect, the people who are advocating it don't believe in it to begin with.  You have slow fuse detainees.  What you don't know, when you imprison somebody, is what you know.  That's why you torture them.  Do you see?  So it's not a limiting case.   

On the other hand, what it is, is a production of television.  I use that in a very broad sense.  I mean, it's inherently very dramatic.  It seems to put the moral question in very dramatic terms, but it has no know, the thing that always strikes me is we have all these cases of torture.  We've been living under a regime that, since September 11, 2001, or very shortly thereafter, this state has been torturing.  But very often advocates of torture don't want to talk about the cases in which torture actually happens.   

Now, I think, frankly, that one has to respond to the use of the ticking bomb which is, you know, in the series "24" — I've never seen it — the television series, it's implicit.  There's also, of course, what I call the "Dirty Harry" phenomenon in American culture, which is this notion — and I talked about it a little in reference to the gloves have to come off — this notion that these things, these prohibitions, human rights in general, protections of the law, the very current trend in American culture since at least the early seventies is these things constrict us, and the American hero is someone who surmounts them.  Very deep in American culture, and particularly in the Western, for example.  Very deeply embedded.   

But you asked me for practical advice, and my practical advice is to say that is a swindle.  If you want to talk about torture, talk about what's happening.  Why are you talking about this case?  Or cite a particular case in which that happens.  And the fact is that torture should be prohibited.  And if there was a case in which somebody actually knew about a nuclear weapon about to explode, well, they'll have to deal with it at the time.  But so far as we know, this has never happened.   

The problem is, once you also — I'll try to finish this, but I'm sure that my responders will have answers, too — once you get into this realm of kind of utilitarian thought in this, you say, well, you capture — I captured a soldier outside of Fallujah.  He might know about an attack that's going to kill five Americans.  And why shouldn't I torture this man, especially if I can do it in a way that he's not going to have any lasting damage.  He might know about an attack.  I mean, it by itself does not limit things in the least.  So I would say that it's a fraud.  It's simply a television fraud. 

Mr. Moore:  Let's go ahead and move along to the next question, Mark. 

Mr. Mark Taylor: Mark Taylor from Princeton Seminary.  My question is appreciative to the remarks of all of you, and this is especially for Mark Danner, and concerns the larger complex of which torture is a part, which we want to understand, and which will hopefully enable our resistance to it to stop it.  I very much appreciate the context of the state of exception as naming that larger context, but I also want to ask to what degree is it important to remember the pre 9/11 context of U.S. accommodations to torture?   

Whether we think about the massive growth of the prison and surveillance technology in our own country over the last two decades in which the prison population had quadrupled, in which there have been many abuses, or, perhaps more connectedly to Latin America, where the U.S. has accommodated itself to torture, and I think even the more cautious interpretations of truth and justice commission reports and studies of the School of the Americas would bear this out.  I know you've been a student also of that legacy of torture.  What can we learn about this resurgence of torture and what I admit is a state of exception from the fact that it is not only an exceptional move on the part of our government, but, in fact, has a history? 

Mr. Danner:  That's a really good question and, you know, I began work as a writer, really, writing about Latin America, Central America, Argentina, among other places, where someone I knew very well in college had been chased out of Argentina by the torture regime there.  And the notion that 20 years later I'd be writing about it as advanced by the United States is kind of mind-boggling to me.  When I'm asked that question, I usually want to resist the comparison, simply because, as I suggested standing up there, you can look at the way torture is conducted, at the actual techniques, and you can see a history there that goes back into the Central Intelligence Agency of the fifties and sixties, and that you can follow its influence through Latin America; there's no question about that.   

But I want to insist — and maybe Jeremy and Scott will have comments on this — that this is different.  We're in a different world here.  Why is that?  Because it has a legal imprimatur, a legal history, and a legal, in effect, challenge, as Jeremy suggested, to the entire structure of our law, and also, I'd say, in a broader political sense, to the way we think about ourselves politically.  And it seems like perhaps ducking the question to say, well, that stuff doesn't matter because it was illegal.  I think it does matter, but I think this matters in a different way, and much more urgently. 

Mr. Taylor:  That can be granted, and I would grant that, and in fact have argued that, too.  But one can grant that, and in fact say it with passion, and say also we have something to learn about this exception, this moment, from the work that you have [promulgated] on accommodation and torture, have done in the past, and I think it's important to keep that— 

Mr. Danner:  Oh, absolutely.  No, no, no.  And I did, you know, the Honduran manual, I mean, absolutely.  I wouldn't contest that a minute.  I'm just trying to say that we're in a moment that is different.  And a lot of times, when I talk about these issues, there usually will be somebody who will stand up and say, in effect, and sometimes from a very different point of view than yours, "You know what, the U.S. has been doing this forever.  What the hell are you talking about here?  Why are you just attacking George Bush?"  Which is often the direction that that goes, interestingly enough.  But not for a political reason, I'd say that this is, it seems to me, a very different moment, very, very dramatically different, I think. 

Mr. Moore:  Either one of the other panelists want to respond? 

Mr. Horton:  I agree with him.  I wouldn't have anything to add to what Mark says.  I think he says it exactly. 

Mr. Moore:  Okay, I'm not playing favorites with Princeton professors, but Professor Peter Paris is actually next. 

Mr. Peter Paris: Thank you very much for this very rich set of presentations.  I'm concerned about who our audience is.  I'm not really that concerned about George Bush or Rumsfeld or Cheney.  I think they are — well, they're unredeemable in the subject.   

Male Voice:  [Inaudible.]  [Laughter.]   

Mr. Paris:  But I'm very concerned about their supporters, those who believe in everything that they say and do.  And do any of you know sort of how many, how much support they do have for the position that they are publicly taking on this issue?  And to what extent, and how might we be able to change the minds of their supporters? 

Mr. Waldron: I mean, just a preliminary answer to that.  They appear to have fewer supporters than they did maybe a year or two ago.  The voting in Congress on the McCain Amendment was quite stunning that regard.  And when the issues are stated firmly and clearly, it seems to me that the support begins to dwindle a little bit. 

Female Voice: But they're not.  [Inaudible.] 

Mr. Waldron: They're not clearly stated, you're exactly right.  That's right.  So they need to be stated clearly.  And I think the role of church leaders is of inestimable importance, because we are not necessarily talking about a large atheist group who are supporting torture, as much as Nietzsche might want us to think that we...we're talking about a large Christian community who are supporting this.  So I think, again, on the theme I used right at the beginning, we mustn't lose hope over this.  And moreover, whether or not we believe that any particular person is redeemable, the Presidency of the United States is redeemable, right?  The Justice Department is redeemable.  Even the Central Intelligence Agency, which has an honorable role to play in the life of a nation, is redeemable.  And talking to or rejecting the holders of those officers is as much talking to the office as it is, and establishing our continuing sense of what the office is.  I think that's important. 

Mr. Moore:  Any other — go ahead. 

Mr. Horton:  I mean, I think, as one of the panelists pointed out earlier, the political process is key, actually, to [inaudible].  There's no way to avoid that.  And I think momentum is clearly moving in the right direction, at long last.  And when this issue first came up I had discussion with a number of Republican senators who I thought would engage on it, and in fact I thought they had very strong feelings about the issue.  One of them in particular, however, said he was going to put the measure forward, but he was not going to do it until he was certain he was going to win, because imagine the disaster that would follow taking such an initiative and losing.   

And his analysis turned out to be quite correct, as 90 votes, and I think we would have 91.  That's what our gubernatorial race here in New Jersey and the senate proved.  So I think things are moving the right way, and I think as this war continues, and the reason of it, the reason, the justification for it seem more and more unclear and confused with time, I think we're going to see a continued movement of public opinion. 

Mr. Danner:  Can I make a very brief comment? 

Mr. Moore:  Go ahead. 

Mr. Danner:  I agree entirely with what was just said.  I want to say two things.  One is the 90 to 9 vote was extremely important, I think, not because it will necessary effect large change in what people do in dark rooms, but because it sets the Senate on record and the Congress on record as making this statement.  It was extremely important.  It was a major victory despite the signing statement.   

The second point I'd like to make is people don't like to think about this issue.  This is not a winning political issue.  This is why the Democrats and Kerry said — I mean, Kerry had his own reasons for not mentioning it, partly having to do with what he said after he came back from Vietnam — but this is not thought to be a winning issue.  And when you put it in front of people, the polling is — we can talk about it forever — but the polling is mixed on this.   

But frankly, when you put it in very clear moral terms in front of people, or in televisual terms, as Abu Ghraib did — part of the problem here is this has not been a televisual story — but when you put it in front of them like that, they will say no, this is wrong.  And it needs to be put forward in very clear terms.  And politicians, for very obvious reasons, don't want to do it.  It is not lucrative politically.  It's more lucrative now because the President's numbers have fallen and for a lot of other reasons having to do with the Iraq war, I think. 

Mr. Moore:   I see other hands.  Unfortunately, we are going to have one last question.  I hope our panelists can stay for a few minutes to talk to you afterwards, but the last questioner is not a Princeton professor.  And so Carol, if you would go. 

Ms. Carol Wickersham: I'm definitely not a Princeton professor.  Carol Wickersham.  I am working with grassroots religious groups, particularly in the Presbyterian Church.  And I actually, this question follows quite well on the heels of the others.  Mr. Danner, I've read not only the book on torture, but also the book on the Florida elections.  And the question, actually, is to ask you to relate those two, because what I'm wondering is are they... 

Mr. Danner:   It was torture for me covering it.  [Laughter.

Ms. Wickersham:  Well, it was torture for me to watch it.  It seems to me that you're exactly right in that the task now is a political one, and that's what I'm working very hard on, is changing the perspectives of those who may have voted for Bush in the last election, particularly by opening up this issue.  My question is, given the state of exception, is our electoral process safe from the state of exception, so that we can work through the political process to do this hard, slow work of helping people to understand what's at stake, and that it will make a difference when they go into the voting booth? 

Mr. Danner:   Goodness.  Well, that's a fascinating question.  First of all I'd say I would not include what happened in Florida as part of the state of exception.  I was trying to use that term concretely, and I didn't mean it to simply mean the Bush Administration or these guys who came in with Bush or anything like that, so I wouldn't...  I like it.  I like your using it, but I wouldn't use it myself.  I don't think it means that.   

I think that the lesson of the last election, 2004, which I also covered, was that if you want to win, you've got to win by more than a few thousand votes.  You've got to win big and you've got to win decisively.  And I think that's simply true in this country for a variety — well, well, exactly.  If you're not...unless you're a Republican, right, is the punch line.  [Laughter.]   

You know...oh, god...I have nightmares still about Florida and about 2000, and it's kind of a painful...they all seem painful subjects at this point.  I think one can say, just talking about these two things together, that I think the illegitimacy of the Bush Administration, the fears about its own legitimacy that were certainly there in a dramatic way in September of 2001 contributed — I tried to, in my remarks, to talk about what is the source of this.  And one of the sources of the virulence of their response — I talked about the history of these guys and so on and their attitude toward international law and other things — but one of the sources of their response certainly was a fear of their own legitimacy, that partly...  You know, they were attacked. It was their watch.  They were attacked.  They missed this issue.  I mean, there were briefings.  We all know that the presidential daily brief on, what was it, July 7th, 2001, the title of it was, "Al Qaeda determined to attack within the United States." 

Male Voice:  August 6th. 

Mr. Danner:  August 6th, I'm sorry, excuse me.  Anyway, the election, certainly their chancy, their uncertain legitimacy, I think, was one of the other, one of the many psychopolitical factors contributing to the political situation we're in now.  And I think it's important to talk about those factors, because there's a lot going on here.  But I think, you know, is the electoral system safe from the state of exception?  Uh...yes, I'd say.  I mean, it's a terrible — the terribleness of the American electoral system predated the state of exception.  This is a very ruthless administration, there's no question about it, but they didn't start how terrible this electoral system is, I'm afraid.  Sorry if that's not a— 

Mr. Moore:  If I could just take the chair's prerogative to just add one thing before we close to answering that question, and that is that there is, I think, a constitutional crisis that's been referred to a number of times today.  A part of that constitutional crisis is the fundamental democratic principle that every person's vote should actually count and be accurately counted in a verifiable way.   

So we, in the Coalition for Peace Action, have actually spearheaded an effort here in New Jersey to try to guarantee that right, which is guaranteed under the New Jersey Constitution as well as under the U.S. Constitution.  We've had a lawsuit, we've had a lobbying campaign, which I think has had quite a bit of success.  In fact, New Jersey just passed a law that mandates a verified paper trail for every vote that's cast in this state, whether it's electronic or other ways.  That will be effective, unfortunately, not until 2008, but at least it's on the books.  And if you want to know more about that, you can see me afterwards, or our chairwoman, [Eileen Goldman].  Eileen, just raise your hand.  We've both been very involved in that.   

Well, again, let's show our appreciation one last time to our panelists, and we'll see you all tomorrow morning.  [Applause.

[End of recording.]

Lecture by Mark Danner; Jeremy Waldron and Scott Horton, respondents; "Theology, International Law, and Torture" Conference, Princeton University, Princeton, NJ

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