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Torture and the Norm against It

Undying Rivals

“Unthinkable.” This is how observers repeatedly described the post-2001 U.S.

torture program during the war on terror.

“I am willing to think the unthinkable,” one prominent legal commentator proudly announced in his 2002 book arguing that interrogators should pursue “torture warrants” to give what he considered necessary work the legal cover that a nation of laws demands.

That same year, the Central Intelligence Agency scrambled to put together a secret interrogation program that included severe sleep deprivation, confinement in small spaces, forced standing, and choking by water, i.e., waterboarding.

After the release of photos showing U.S.

soldiers abusing prisoners at the Abu Ghraib prison in Iraq in 2004, another well-known lawyer and commentator discussed “thinking the unthinkable” en route to claiming that torture should, in essence, be (to borrow a phrase from the 1990s abortion debate in the United States), “safe, legal, and rare.” Critics of torture also used the word.

“[T]he unthinkable is not only being thought, but openly considered,” reported one columnist as part of an argument that torture should never be permitted.

“Torture used to be unthinkable,” lamented another.¹ The term has also made its way into the titles of scholarly works and movies.

The label “unthinkable” sometimes serves as a synonym for “unspeakable,” referring to the gruesome nature of the act.

McCarthy (2004) writes that “even reading or thinking about such practices may make the teeth clench and the stomach churn.” It also suggests a perceived mismatch between American moral commitments and torture.

Both international and domestic norms proscribe torture.

That is, there exists a collective expectation that torture is wrong.

Deeply held norms can lend the acts they proscribe an “unthinking” quality—violating such taboos does not, or should not, even come to mind (Price and Tennenwald 1996).

Critics of the torture program also frequently point out that the United States has a history of treating prisoners well.

After the truth of the post-2001 program set in, it prompted a reevaluation.

As legal scholars such as Luban (2007, 1425) observed, “Torture used to be incompatible with American values.” The United States used to punish torturers, sometimes with death (Begala 2009).

While I will contend that the U.S.

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