A Rant On Torture And The State of Exception

June is supposed to be torture awareness month so I see some Jordanian bloggers putting up little “This Blog is Against Torture” buttons. The question of torture sort of inspired some deja vu for me from some poli-sci classes taken what feels like years ago now.

Torture is tied to security and therefore tied to power. Whether it’s done to maintain political power or to maintain national security, the two can be separate objectives but not at all exclusive. Michael Walzer argued that even a good politician who aims to do good will inevitably have to ‘get his hands dirty’ because this is a world where they are outnumbered. This runs along Machiavelli’s concept of “how not to do good”, since even being a “good” ruler in power means you have chosen to struggle among “so many who are not good”. It’s the only way to survive.

This is known as the dilemma of “dirty hands”. Although Walzer was talking more about the good politician or the good ruler, the one who intends to do good. So this isn’t exactly Lady Macbeth trying to wash the blood off her hands while screaming “Out damned spot! Out I say!”

Where it gets interesting is with Carl Schmitt who starts off his “Definition of Sovereignty” essay with the famous line of “Sovereign is he who decides on the exception”. The assumption here is that democracy is based on a system of governing that functions only under normal circumstances. Schmitt asks what happens in a state of emergency. The sovereign, the person in power decides that this situation qualifies as an emergency and therefore he grants himself certain powers and puts the normal system on hold.

So what does “dirty hands” and “sovereign is he who decides on the exception” have to do with torture?

Well imagine all your daily routines are broken by one single event; an emergency. Something the likes of which we saw possibly on November 9th in Amman. A terrorist attack. Suddenly the alarms go off, security is mobilised, places are closed off, borders closed down and the normal daily routines come to grinding halt. Suddenly the number one priority is security. Our own security forces have within the hour several people in custody. The first question of security in such a state of emergency is the possibility of more attacks. The only people with information that can stop this attack from happening are those in custody. Do we go to any lengths to extract the information we need? Do we torture them?

Remember, this is a state of emergency. The normal “rules” which were designed to operate under the “normal” circumstances do not apply. We don’t have time for due process; time to launch an investigation that could take days when every minute counts.

So do we get our hands dirty in order to do good? Do we torture to save lives? If of three hotels that were bombed, only two succeeded and the third, the most deadly one, the one with the wedding, was yet to go off and people with information about the location of those bombers were in custody, would you as “the sovereign” allow torture for the sake of stopping that bomb from going off? And forget about being a ruler, think of yourself as a citizen. If someone invaded your home with intent to hurt you and your family, would you shoot to kill? Would you think about human rights in that moment? That state of exception?

This is the dilemma with dirty hands, the exception and torture.

The U.S. has managed to create a whole post-9/11 state of exception, or at least the current administration has. Guantanamo and the Patriot Act are all examples of this. What Schmitt goes on to say is that if the sovereign decides on the exception, in other words if he decides this is an emergency and the normal way of doing things doesn’t count, then he also decides ultimately when such a state ends and things go back to “normal”. The other problem that happens is that the sovereign has a carte blanche when it comes to exercising certain powers. The U.S. as a system of government has a lot more restraints on power than most people give it credit for, however there are always loop holes and there are always ways to retain that power or justify it: reminding everyone in every single speech that terrorists are everywhere and could attack any time is just one way of doing that.

Anyways, these are all questions we should ask as honest citizens. Can torture be justified? Are there certain circumstances that allow it? What are those circumstances? Can we or should we distinguish between torturing a suspect for security such as that which I attempted to illustrate in the example with the Amman Bombings, and torturing for the sake of politics in order to remain in power?

So the reason I can’t dedicate myself to putting up a button on my blog that says “This Blog is Against Torture” is because I’m not entirely sure if I am. I know we all to love pick a position and stick with it, defending it to the death. But in real life there are many shades of grey and when I think about this statement I remind myself I’m just a citizen at the end of the day. I can sit here and criticise the powers-that-be for doing what they do after they do it, but I’m not sure I would react the same if they revealed to me how many times itâ??s kept me and my family safe. I’m not sure I would react the same if I was the Sovereign and I had all the information and I decided on the exception and I had to make that decision.

I’m not saying I’m pro or anti torture, I’m just in the middle. I have no actual position. Maybe that’s a good thing. Maybe this is one of those subject that is so full of grey that you shouldn’t take a universal decision and instead judge according to the case.

Maybe not.