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A Rose by Another Name: Legal Definitions, Sanitized Terms, and Imagery of Torture in 24

In this paper, I explore the role of popular television imagery of torture in shaping the U.S. legal and political debates over the definition of torture, cruel, inhuman, and degrading treatment.Taking the popular show 24 as an instance of a dominant
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  LAW, CULTURE ANDTHE HUMANITIES  Article Corresponding author:  Jinee Lokaneeta, Department of Political Science, Drew University, 36 Madison Avenue, Madison, New Jersey. E-mail: Law, Culture and the Humanities 6(2) 245–273© The Author(s) 2010Reprints and permission: 10.1177/1743872109358515 A Rose by Another Name: Legal Definitions, Sanitized Terms, and Imagery of Torture in 24 1  Jinee Lokaneeta Department of Political Science, Drew University, Madison, NJ Abstract In this paper, I explore the role of popular television imagery of torture in shaping the U.S. legal and political debates over the definition of torture, cruel, inhuman, and degrading treatment. Taking the popular show 24  as an instance of a dominant imagery of torture, I analyze how this imagery of torture informs the definitional distinctions adopted by the United States. I argue that the popular imagery of torture with its emphasis on physical brutality continues to influence the legal and political discourse on torture. Apart from legitimizing a narrow definition of torture, the popular imagery also allows the United States to create an arena of acceptability for apparently less severe forms of violence. Thus, the need to call rose by another name  is not just an attempt to deny the presence of torture by using narrow definitions but in addition because of the popular imagery, the present time is represented as an actual moment of progress from earlier more brutal times. Keywords imagery of torture; Jack Bauer and 24 ; rhetoric of denial; legal definitions of torture; sanitized terms; routine methods. “Obviously, things like cutting off fingers, to me that sounds like torture…”  Former Attorney General Gonzales 2 1. I owe the title of the paper to a round table on torture organized by Barbara Haylor at the Midwestern Political Science Association, April 2007.2. Senate Judiciary Committee’s Hearings on the Nomination of Alberto R. Gonzales to be  Attorney General  ,   January 2005. (last visited March 5, 2006).  246 Law, Culture and the Humanities 6(2) Popular television imagery of torture plays an important role in shaping U.S. legal and  political debates over the definition of torture, cruel, inhuman, and degrading treatment. Taking the popular television show 24  as an instance of a dominant imagery of torture, I analyze how this popular imagery informs the particular definitional distinctions adopted  by the United States. Because the popular imagery of torture emphasizes physical brutal-ity, it legitimates a narrow definition of torture and creates an arena of acceptability for apparently less severe forms of violence.The “war on terror” has resulted in a vitriolic debate between the human rights groups and scholars who have brought suits charging U.S. officials with authorizing torture, and the government officials who flatly deny and denounce the use of torture. 3  The debate on torture primarily involves three issues. The first issue is whether U.S. officials authorized torture in Guantánamo Bay, Cuba; Bagram and Kandahar in Afghanistan or in Abu Ghraib prison in Iraq. The second issue regards the very definition of torture and the distinction between torture and cruel, inhuman, and degrading treatment (henceforth CIDT). The third issue is whether the current U.S. laws are adequate to deal with the question of torture and CIDT. I first chart out some important strands of the torture debate in order to contextualize the arena in which the popular imagery of torture performs. I then focus on the popular imagery of torture. Here, I take the American television show 24  as a dominant instance of popular imagery of torture in contemporary times. I argue that the popular imagery of torture, which emphasizes physical brutality, legitimizes a narrow definition of torture and uses sanitized and routinized terminology to make less severe forms of violence seem ordinary and acceptable. Thus, popular imagery not only helps government offi-cials deny the presence of torture by using narrow definitions, but manages to present the current practice of coercive violence as an actual moment of progress from earlier, more  brutal, times. I. The Torture Debate 1. Laws Regarding Torture in the United States The primary constitutional protections against torture in the United States are the Fourteenth Amendment due process clause, Fifth Amendment self-incrimination clause, and the Eighth Amendment protection against cruel and unusual punishment. In addi-tion, there are international treaties that the United States has signed and ratified that also serve as protections against torture and against cruel, inhuman, and degrading treatment – namely the ICCPR (International Covenant on Civil and Political Rights), the Geneva Conventions, and the UN Convention against Torture.In the 1990s, new statutory protections against torture were enacted in the United States. In 1994, the U.S. Congress passed, after much delay and heated debate, the Federal anti-Torture Statute (18 U.S.C. § 2340A), based on the UN Convention. The U.S. 3. Some cases filed against the U.S. government regarding the use of torture are:  El-Masri v. Tenet   479 F.3d 296 (2007) on extraordinary rendition   and  Ali et al. v. Rumsfeld   (2006) on civil damages for torture.  Lokaneeta 247 Federal anti-Torture Statute criminalized torture committed by U.S. officials only outside the United States, because existing domestic laws were seen as adequate protections against torture within the United States. Two years later, the U.S. Congress passed the War Crimes Act that also made “grave breaches” of the Geneva Conventions punishable  by law. The military included protections against torture and other forms of cruel, inhu-man, and degrading treatment in the Uniform Code of Military Justice and the 1992 Army Field Manual. It is this combination of laws and regulations that collectively strengthened a popular national self-conception that torture is completely prohibited by the United States. This spectrum of laws also became the subject of much debate and re-interpretation in the post-9/11 period, spurred by now-infamous memos written by Jay Bybee and John Yoo in the Justice Department’s Office of Legal Counsel, which put forward extremely narrow interpretations of these laws. 4   2. Denial of Torture: Rhetoric of the United States The United States has consistently denied the existence of torture in both the pre- and  post-9/11 contexts. For instance, the 1999 U.S. Report on Torture submitted to the UN Committee against Torture stated, “Torture does not occur in the United States except in aberrational situations and never as a matter of policy.” 5  Even in the post-9/11 period, President Bush often stated, “We don’t torture people in America. And people who make that claim just don’t know anything about our country.” 6  In fact, immediately after September 11, 2001, when FBI officials appeared on talk shows and gave statements in the newspapers about the possibility of using torture, one FBI agent who had been involved in the 9/11 investigation was quoted as saying, ‘“We are known for humanitar-ian treatment, so basically we are stuck…”’ 7  Readers writing in response to political commentator Jonathan Alter’s article on the need for using torture, wrote that contem- plating torture was “traitorous to the ideals that keep America on the high moral ground” and “negates the values on which our civilization was founded.” 8 Legal scholar Edward Greer rightly characterizes this inherent belief in the absence of torture in the following way, “In the hegemonic legal ideology of the United States, torturing people is a taboo.” 9   4. See discussion of applicable laws in  Initial Report of the United States to the United Nations Committee Against Torture , October 15, 1999.5. Op. cit., p. 6.6. E. Greer, ‘“We don’t torture people in America’: Coercive Interrogation in the Global Village,’’  New Political Science  26 (2004), pp. 371–87, p. 386.7. W. Pincus, “Silence of 4 Terror Suspects Poses Dilemma for FBI,” Washington Post  ,   October 21, 2001. (last visited March 21, 2003).8. J. Alter, “Time to think about Torture,”  Newsweek  , November 5, 2001. (last visited May 10, 2006). Mail Call, “Torture and the Modern World,”  Newsweek  , December 17, 2001. (last visited May 10, 2006).9. Greer, “We don’t,” p. 386. See discussion on denial of torture in S. Cohen, States of Denial:  Knowing about Atrocities and Suffering  , (Cambridge, UK: Polity Press, 2001).  248 Law, Culture and the Humanities 6(2) Thus, the United States cannot appear to be condoning an “uncivilized” and “medieval”  practice such as torture.Two prominent U.S. military investigations of Guantánamo Bay in the post-9/11 con-text, the Church Report and the Schmidt Report, appeared to confirm the absence of torture even at this controversial site. 10  The Church Report is one of the most detailed reports on the “comprehensive chronology regarding the development, approval and implementation of interrogation techniques.” 11  After a review of the various reports, tes-timony of state officials, and subject matter experts, the report concluded that there had  been no evidence that torture or, indeed, any abuse had been authorized by the U.S. offi-cials. 12 The Church Report notes, We found, without exception , that the DOD officials and senior military commanders responsible for the formulation of interrogation policy evidenced the intent to treat detainees humanely , which is fundamentally inconsistent with the notion that such official or commanders ever accepted that detainee abuse would be permissible. 13 Here, the term “without exception,” suggests that all incidents of abuse were aberrations or problems in implementing policies and that state officials clearly intended to treat the detainees humanely. The findings of the Schmidt Report were even more surprising since it was specifically impaneled to investigate the abuse already witnessed and reported by the FBI personnel based at Guantánamo. The Report in its executive summary notes, “the AR (Army regulations) 15-6 found no evidence of torture or inhumane treatment at JTF-GTMO.” 14  In the case of only one high-value detainee does the report find that some methods used were degrading and abusive but not inhuman. 15  This reiteration of the impermissibility of torture in the United States in official nar-ratives is in complete contrast to the reports by human rights groups and legal scholars which point out that torture has been allowed in the United States especially in the context 10. Schmidt Report,  Army Regulation 15-6: Final Report, Investigation into FBI Allegations of  Detainee Abuse at Guantánamo Bay , Cuba Detention Facility, April 2005 (amended June 2005). Church Report,    Review of Department of Defense Detention Operations and Detainee  Interrogation Techniques, 2005.  The Church Report (Naval Inspector Vice Admiral Albert T. Church) looked into all the DoD operations including those in Iraq and Afghanistan but in this  paper, I focus primarily on Guantánamo.11. Church Report, Op. cit.,    p. 23. 12. Even for the abuses at Abu Ghraib (such as physical and sexual assault) that consensually constitute mental and physical torture; the term torture is not easily used. For example, the Schlesinger report set up to review the detention operations of the Department of Defense did not term the acts of U.S. soldiers as torture. Rather, they were defined as “acts of brutality and purposeless sadism.”  Final Report of the Independent Panel to Review DoD Detention Operation (Schlesinger Report) (August 2004), in M. Danner, ed.,  Torture and Truth:  America, Abu Ghraib and the War on Terror   (New York: New York Review of Books, 2004),  pp. 329–402.13. Church Report, p. 3, emphasis added.14. Schmidt Report, p. 1.15. Op. cit., p. 1.  Lokaneeta 249 of the war on terror. In a section, entitled “Has the U.S. been committing torture in Guantánamo?” the Center for Constitutional Rights, a human rights group, states, 16 Only an independent commission can fully address the nature and extent of the use of torture against Guantánamo prisoners. Yet, the evidence assembled in this report clearly points to a  pattern and practice of torture and cruel, inhuman, and degrading treatment that implicates a  policy encouraging its use. 17 This report is particularly significant because one of its primary sources is the testimony of the detainees themselves, gleaned from the prisoners’ habeas cases and cleared for  publication by the Department of Defense. In 2006, the United Nations report on Guantánamo (by the Commission on Human Rights) also concluded that many of the methods authorized by the U.S. when used “simultaneously” did constitute “degrading treatment,” and in individual instances where there was severe pain and suffering involved, “amounted to torture.” 18   3. Parameters of the Torture Debate: It’s All About Definitions One of the primary issues of the “torture debate” in the post-9/11 period has been whether the U.S. state officials authorized torture as a policy. This debate is important  precisely because the U.S. denied either the existence or the authorization of torture. In 2004, when the pictures of torture at the Abu Ghraib prison in Iraq first appeared along-side the formerly classified memos regarding interrogation and detention, the evidence seemed to establish a direct link between the methods of interrogation authorized for Guantánamo and the abuses at Abu Ghraib. Indeed, the Bybee memo (and the John Yoo memos) defended the right of the Commander-in-Chief in the post-9/11 context to introduce interrogation methods not covered by the 1994 Federal anti-Torture Statute. The memo also suggested that certain defenses based on necessity and self-defense could be employed for those who violated the torture statute. 19  Even though this 16. Center for Constitutional Rights is a non-profit group based in NYC that has been at the forefront of ensuring due process rights and protections for the detainees under U.S. and inter-national laws. Center for Constitutional Rights (CCR),    Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba , July 2006.17. Op. cit., p. 31.18. UN Report on Guantánamo, 2006, p. 37. The UN report found many of the methods autho-rized by the Department of Defense a violation of Article 7 of ICCPR and Article 16 of the Convention against Torture. Arbitrary and extended detention and “prolonged solitary con-finement” was also termed as “inhuman treatment” by the report (UN Report, 2006, pp. 36–7). United Nations Commission on Human Rights,  Situation of detainees at Guantánamo  Bay, February 15, 2006.19. This memo was actually written by John Yoo who had also been the main state official to put forward the arguments about non-applicability of Geneva Conventions to the “war on terror.” Hajjar considers the recent memos as representing illegality on the part of the “right wing radicals.” See L. Hajjar, “What’s the Matter with Yoo? The Crime of Torture and the Role of Lawyers,” unpublished conference paper,  Law and Society Association Annual Meeting  , Las
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