Reviewed by Daniel Hoffman, Department of Political Science, Johnson C. Smith University (retired). Email: guayiya [at] bellsouth.net
This book’s topic is fairly well conveyed by its subtitle, Law, Violence, and State Power in the United States and India. The author is an Assistant Professor of Political Science at Drew University. The Introduction reminds us that in principle, liberal democracies are emphatically and unconditionally opposed to the practice of torture; yet, paradoxically, both countries have seen a good deal of it. There follows a discussion of the place of violence in liberal political theory, drawing on thinkers as varied as Hobbes, Dworkin, Robert Cover, Austin Sarat, and Michel Foucault. Lokaneeta’s project is to consider alternative explanations of how and why “excess violence,” which includes “torture, cruel, inhuman, degrading, humiliating treatment, and coercion,” occurs. She focuses on the pertinent legal and political discourses in the U.S. and India, in the separate but intertwined contexts of routine criminal interrogations and counterterrorist programs. Her thesis is that the liberal state is unable to contain excess violence, in part because endless debate over the definition of torture “allows the legal and political discourse to ignore, accommodate, or justify torture in some instances” (p.32).
Chapter 1 describes the jurisprudence of routine interrogations in the United States, tracing the ubiquity of the “third degree” in interrogations before WWII. Official discourse alternated between denying its existence, interpreting it as less than torture, and justifying it as necessary. The judiciary subsequently developed enhanced protections against the use of coerced confessions (especially the Miranda doctrine), but Lokaneeta emphasizes the loopholes, ambiguities, and judicial disagreements that permit violent interrogations to continue and deny effective remedies to many who suffer them. While emphasizing that custodial interrogation is inherently coercive, she does not examine the pervasive, and equally problematic, practice of plea bargaining.
Chapter 2 sets forth the discourse regarding “enhanced” interrogation methods used in the war on terror, at Abu Ghraib, Guantanamo, and elsewhere. While some have viewed these activities through the lens of a special “state of exception” (e.g., Agamben, 2005), Lokaneeta notes the unbounded character of this emergency, the aggressive exploitation of gaps within existing laws, and the “continuities in the practices of torture in the pre- and post-9/11 period” (p.71). The difficulty of precisely defining “torture” enables the consistent denials of its use, but none of the shifting legal arguments and standards advanced by the Bush and Obama administrations has allayed concerns about the use of techniques that, she believes, clearly amount to mental torture. Nor have the Supreme Court decisions regarding access to the courts for alleged enemy combatants addressed the question of permissible interrogation methods.
Chapter 3 considers depictions of torture in the TV show “24”, and the debates the show produced. The interaction between official discourse and popular culture, she argues, “further illustrates how excess violence is denied and normalized” (p.108). 24’s depiction of physically brutal acts contributes to a sense that less brutal techniques would fall short of constituting torture. This helps to explain, Lokaneeta claims, how two official U.S. reports on Guantanamo could find no evidence of torture or inhumane treatment there.
Chapter 4 shifts the focus to India, where activists report a custodial death rate exceeding 1,000 per year. The government implausibly attributes these deaths to natural causes, suicide, accidents, and so forth, rather than torture. The relevant legal framework descends from the colonial period, when the British raised a native-staffed police force that, according to an 1855 report, was too uncivilized to adhere to British human rights standards. India’s Constitution contains versions of our due process and self-incrimination norms, and the judiciary, partly influenced by the U.S. Miranda case, has developed a strong jurisprudence regarding coerced confessions. An intriguing feature is that Indian police are barred from recording confessions. Instead, the accused must be brought before a magistrate, who will record a confession delivered there only after determining that it is voluntary. (Compare the current move in the U.S. toward videotaping of police-citizen interactions.) The persistence of widespread problems is explained partly by flaws in the training and incentives that police encounter, but also, Lokaneeta argues, by weaknesses in the jurisprudence itself. As in the United States, leading cases announcing a seemingly clear standard are commonly followed by others that qualify or distinguish its applicability. “The Court subsequently exhibited a desire to mediate the carefully thought out safeguards and build a certain amount of flexibility into the safeguards” (p.162). While litigation by organized pressure groups was able to win significant reforms, demands for public safety and police effectiveness played a countervailing role.
Chapter 5 reviews several extraordinary laws enacted in India to deal with regional insurgencies and terrorist attacks. The Constitution permits suspension of civil liberties during declared emergencies, as well as preventive detention even in normal times. Under one emergency law, enacted in 1985, about 76,000 people were detained for up to a year, though only 1% were ultimately convicted. This law was held constitutional, even though it restored to police the power to record confessions. It was allowed to lapse in 1995, but “the cases thereafter observed a further dilution of even the minimal safeguards applicable to confessions” (p.178). A new law, enacted in 2002, contained added safeguards and was likewise upheld by the Supreme Court, which noted that violation of those safeguards would not necessarily make a confession inadmissible, depending on the “totality of circumstances.” Further, the close relationship between the routine and the extraordinary legal regimes is visible not only in the jurisprudence but in the sections of society, identified by religion, caste, and political disaffection, that are most affected by the state violence in each case.
Chapter 6, the Conclusion, theorizes a “politics of denial,” in which the acknowledged impermissibility of torture “masks a lack of clarity about the nature of violence allowed or disallowed” (p.200). Moreover, “the exception and the routine are on a continuum and not a complete break from each other” (p.203). Nor can the resort to excess violence be explained as a simple failure of the state to effectively enforce its norms, because the jurisprudence itself manifests the state’s inability to control excess violence. In this study, “the Court is observed as a major site of authentication of torture” (p.204).
This book deserves to be assessed on several dimensions. First, it is highly informative, well-researched and –documented. The material on India, in particular, will be new to most readers of this Review. There are only a few questionable descriptive items, such as referring to Attorney General Gonzalez as “Judge Gonzalez” (pp.25, 81); while Gonzales once was a judge in Texas, it was as U.S. Attorney General that he was involved in the policies under discussion. Lokaneeta also too casually refers to the Obama administration as “law-abiding” (p.66), though it has done nothing to enforce the torture laws against Bush administration policymakers, and has continued to engage in several more of the arguably illegal practices of that administration.
Second, it is hard to quarrel with the author’s normative stance on torture, and easy to understand her puzzlement over the huge gap between professed ideals and facts on the ground. However, Lokaneeta’s theorization of the role of law can be perplexing. Lawyers may be surprised that she repeatedly expresses dissatisfaction with a court’s failure to examine questions that were not squarely presented to it, or to enunciate doctrines much broader than needed to decide the case. The author also pays only fleeting attention to ancillary doctrines, such as state secrets or sovereign immunity, and other procedural rules that can affect outcomes without speaking directly to the issue of excess violence.
Though Lokaneeta shows some familiarity with the judicial politics literature, this treatment raises a question of how far the failure of the courts that concerns her is a failure specifically regarding state violence, and how far it reflects the limitations of the judicial apparatus in general. In addition, though her review of the vagaries of case law recognizes that interest groups push back against decisions that displease them, Lokaneeta never examines the impact of changing judicial personnel or the strategic interactions among them.
The decision not to study the “enforcement problem” seems especially consequential. The point that torture is too pervasive to be dismissed as the work of “bad apples” is telling, but it does not logically follow that the silences and ambiguities of the jurisprudence are a strong, independent variable. It might be the case that the law in general, or in many significant sectors, largely reflects, and thus willy-nilly legitimizes, forces beyond its control. The study does not reference the literature on the impact of judicial decisions.
Lokaneeta criticizes Foucault for failing to recognize the persistence of state-inflicted violence; but clearly, no liberal democracy can perfect his alternative utopia/dystopia of preventive discipline. What Lokaneeta herself aspires to is rather unclear. Recognizing that the state is obliged to struggle with nonstate violence and thus cannot altogether renounce violence on its own part, she nonetheless abstains from offering a definition of torture, or specifying the standard that jurisprudence should use to determine when violence is excessive. The seemingly oxymoronic – or ironic? – reference at one point to “acceptable levels of excess violence” (p.99) is especially baffling.
The author does repeatedly cite with approval the pertinent international human rights conventions and human rights organization reports, but these do not suffice to formulate the comprehensive, effective antitorture jurisprudence for which the study has sought in vain. Perhaps the bottom line is just that violence should, and does, make us uneasy and reflective.
Agamben, Georgio. 2005. State of Exception. (trans Kevin Attell). Chicago: University of Chicago Press.
Copyright 2012 by the Author, Daniel Hoffman.