by Jeremy Waldron. New York: Oxford University Press, 2010. 368pp. Hardback. $37.50/£19.99. ISBN: 9780199585045.
Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.
Jeremy Waldron, a professor of Law at New York University who also holds a position at Oxford, continues his record of scholarship in the area of legal and political philosophy. Having published or presented research on the topics of torture and terrorism for most of the last decade, he combined it with original material in the present volume. He relies on a diversity of sources, including the writings of political philosophers, the text of international covenants and agreements, Supreme Court rulings, and pertinent secondary references.
Though the book is comprised of ten chapters, there is no overt division of parts. Still, five broad areas are discernible and will be covered here, starting with the Introduction. It is there that the author delineates the theme of the work: though the heinous attacks of September 11, 2001 changed our conception of what terrorists are capable of, laws and agreements pertaining to the use of torture did not change. For Waldron, torture “was and remains a moral as well as a legal abomination” (p.4). In order to justify those practices, U.S. officials sought to ignore or downgrade international law. However, America’s reputation abroad suffered as a result. Further, nations such as Italy have charged U.S. intelligence personnel with crimes associated with the use of certain interrogation methods.
Chapters 2, 3 and 4 offer critiques of responses to terrorism. In Chapter 2, Waldron examines the proposition that increasing threats against citizens mean that they must forfeit some liberties to achieve adequate security. Waldron worries that the tools delegated to governments to combat a perceived external enemy will be retargeted against the government’s opponents anywhere. He asserts that we “should not give up our liberties, or anyone else’s liberties, for the sake of purely symbolic gains in the war against terrorism” (p.47). Chapter 3 defines and differentiates concepts related to terrorism and discusses divergent intentions behind terrorist acts. Chapter 4 uses a 2004 paper by Jeff McMahan to make a point about the importance of international law and conventions. Whereas McMahan argues that there is no moral justification for a blanket prohibition against attacking civilians during war, Waldron retorts that “[a]bsent the laws and customs of armed conflict, all killing in war would be murder” (p.106).
In Chapter 5, Waldron explores differing conceptions of security, including the distinction between collective and national security. Chapter 6 highlights Henry Shue’s 1980 study, which identifies security and subsistence as indispensable elements for the enjoyment of human rights. But for Waldron, “security is not an [*209] all-or-nothing matter, but a matter of more or less” (p.177).
Torture is approached from moral, religious, and legal perspectives in Chapters 7 through 9. Chapter 7 notes that the U.S. is not alone among developed nations in being accused of employing torture as a tool of military and security policy, as France, Britain, and Israel have been likewise criticized for brutal interrogation methods. This chapter contrasts the permissive views of two Justice Department officials in the George W. Bush administration toward torture with both the long-term Anglo-American history of rejecting the utilization of torture and with contemporary international agreements which the U.S. purportedly supports, including the Geneva Conventions, the International Convention Against Torture, and the International Covenant on Civil and Political Rights. Chapter 8 relays the contributions from Christian theology on the topic of torture, but Waldron laments that it is in “respect of that enterprise of the repair of a moral framework that the voices of church leaders have been most sorely missed” (p.267). Chapter 9 reviews how cruel, inhuman, and degrading treatment is regarded by international and American documents alike.
In the final chapter, Waldron makes the case for adhering to the rule of law in international affairs. He reminds readers that states serve as a source and official of international law, not just as a subject of it. Accordingly, governments are obligated to follow established rules in all interactions. “They are not to think in terms of a sphere of executive discretion where they can act unconstrained and lawlessly” (p.329), warns Waldron.
Between 2006 and now, there have been a plethora of books probing the nexus between terrorism and torture; three most similar to the present volume are reviewed here. Alfred W. McCoy’s 2006 book contains fewer chapters and total pages than Waldron’s study. Though McCoy traces the use of torture over a longer duration than that of Waldron, he comes to a similar conclusion about its destructiveness: “As a powerfully symbolic state practice synonymous with brutal autocrats, torture – even of the few, even of just one – raises profound moral issues about the quality of America’s justice, the character of its civilization, and the legitimacy of its global leadership” (p.225).
In his 2008 study of the how the George W. Bush administration responded to the 9-11 attacks, James P. Pfiffner covers questions about habeas corpus and surveillance in addition to torture. At nine chapters and 299 pages, the Pfiffner book is probably most similar to McCoy in structure. Although Pfiffner limits the direct focus on torture to a single chapter, he includes the views of the same Bush Justice Department official, John Yoo, as found in Waldron. Alternately, Pfiffner reviews the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 as they pertain to Bush White House actions regarding torture, while these laws are only mentioned in passing by Waldron. Pfiffner concludes that President George W. Bush “exceeded his authority as president and commander in chief by asserting his unilateral authority to ignore the Geneva Convention as well [*210] as the U.S. criminal code. . . It will take decades, if not generations, for the United States to recover its reputation as a country that respects the rule of law” (p.167).
Just a few months after the publication of Waldron’s work, Charles and Gregory Fried published a similar one-sided perspective on the the damage wrought by those governments which utilize torture as national policy. Their book is significantly shorter than that of Waldron’s text, though Fried and Fried broach issues of privacy and unauthorized spying in war on terror not evaluated by Waldron.
There are a few shortcomings in the present text. In terms of sequence of presentation, it may have been beneficial for Waldron to place the material in Chapters 5 and 6 at the beginning of the book, as they furnish definitions and a long-term philosophical framework on concepts associated with the study. Further, as is normally the case with a book containing a composite of previously published work, there is some repetition of information, such as that found in Chapters 7 and 9 on international agreements against torture. Finally, there is a lack of a comprehensive “philosophy for the White House” as promised in the title.
However, it is difficult to quarrel with Waldron’s basic premise or findings. Over the last few years, the United States government has witnessed a series of setbacks associated with its war on terror, including the 2008 BOUMEDIENE v. BUSH ruling by the U.S. Supreme Court on the habeas corpus rights of detainees, the controversy about the future of the Guantanamo Bay base detention facility, the arrest or charging of U.S. personnel abroad for alleged war crimes, and the reentry of many released detainees into terrorist networks. Unfortunately for American security interests, the recent upheaval in the Middle East has led to changes in nations where the U.S. is suspected of “farming out” torture, such as Egypt. Too, at least one nation that worked closely with the American military operation in Iraq has apologized and paid reparations to its citizens who were detained and allegedly tortured.
There are many reasons to reject torture as a method of interrogation: it strains relations with allies; it could lead to unwanted reciprocity; it might lead to forced confessions; and it could render the captive unable to furnish additional information. But above all, it is inconsistent with American judicial procedures and cultural values. Waldron’s study demonstrates why the short-term flouting of domestic and international laws can have sustained implications for national policy and a country’s collective conscience.
Fried, Charles, and Gregory Fried. 2010. BECAUSE IT IS WRONG: TORTURE, PRIVACY, AND PRESIDENTIAL POWER IN THE AGE OF TERROR. New York: W.W. Norton and Company.
McCoy, Alfred W. 2006. A QUESTION OF TORTURE: CIA INTERROGATION, FROM THE COLD WAR TO THE WAR ON TERROR. New York: Owl Books/Henry Holt and Company. [*211]
McMahan, Jeffrey. 2004. “The Ethics of Killing in War.” ETHICS. 114: 693.
Pfiffner, James P. 2008. POWER PLAY: THE BUSH PRESIDENCY AND THE CONSTITUTION. Washington, DC: Brookings Institution Press.
Shue, Henry. 1980. BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY. Princeton: Princeton University Press.
BOUMEDIENE v. BUSH, 553 U.S. 723, 2008.
© Copyright 2011 by the author, Samuel B. Hoff.