Abstract
As the subtitle of the book reveals, Transnational Torture analyses the relationship between law, violence and state power through the legal and political discourse on torture. This book looks at the discourse on torture particularly in the context of liberal democracies that have managed to seemingly vanquish torture in their respective legal discourse. It is a study contextually placed in the post-9/11 world although it does not restrict its research to the said time period. Post-9/11, the world witnessed unprecedented use of legally sanctioned repressive state power in the name of the ‘war against terror’. It is against this nexus between law, violence and state power that Lokaneeta constructs the discourse on torture.
Transnational Torture stands as a major contribution to the wide spectrum of existing literature dealing with the triangulation of law, violence and state. It does so by complementing, contrasting and challenging a wide number of studies. Upendra Baxi in Crisis of Indian Legal System (1982), while tracing the dilemmas of legitimation of law and power in liberal societies, talked about the ‘complexities of the legal liberalism’ resulting in the crisis of legal system and torture. Randhir Singh’s (2009) work on state terrorism talked of how state unleashes violence on citizens through active support of its laws. Carl Schmitt’s idea of ‘exception,’ which, according to him, determines human reality rather than the rule and Georgio Agamben’s work on ‘State of Exception’ blurring the boundaries between the intra and extra-juridical have been dealt with extensively in Lokaneeta’s work where she takes on the idea of torture as part of ‘exception’. Her work draws a lot from Ujjwal Singh’s (2007) work on the functioning of extraordinary laws resulting in the ‘permanence of temporary’ while liberating the existence of torture from the ‘exceptional’ and situating it in the ‘routine’.
The book has not been written in a comparative framework; rather it is largely a theoretical project where the United States and India are used as illustrations of two of the most conspicuously liberal democracies that follow the official policy of denial in relation to torture. The most dominant theme of the book appears to be the relationship between law and violence in a liberal democracy. Lokaneeta’s central argument is that debates on torture within liberal democracies have to be seen as a ‘manifestation of State’s inability to contain excess violence’. The use of the term ‘excess violence’ is crucial to her work. She has drawn from Foucauldian literature to define a category which includes a continuum of acts ranging from coercion to torture (p. 32). Within this overarching framework of the law’s relationship to excess violence, she analyses various sub-themes that bring out the debates on torture in liberal democracies.
Methodologically, though the work closely looks at formal, positive laws, it does not work within the positivist framework. A positivist reading of laws is mostly for the purpose of finding the silences within. The book is an attempt to theoretically link torture with state power, law and violence. For the purpose, it uses discursive analyses, interpretations as well as empirical work. The empirical details of the study have been gathered by looking at different cases at the level of supreme courts. The basic assumption is to be able to make some generalised argument about how the apex institutions deal with torture. It avoids defining law as a monolith and takes jurisprudence and judicial interpretations within the ambit of law.
The empirical details are intertwined with the theoretical framework. As the framework is that of liberal democracy, the work draws from western normative theory. It talks of the Hobbesian logic of creation of state to bring out the ‘liberal paradox’, pointing at the unsettled relationship between law and violence from the very beginning. The book also takes contextual analysis into account and looks at the debates on torture through periodisation (though neither starkly, nor chronologically), like looking at the torture memo in the context of the World Wars to the context of 9/11. The work is historically traced.
It draws a lot from inter-textuality—looking at texts in their stable positions and bringing them together. It has an exhaustive bibliography, and Lokaneeta has looked at primary material like government reports, legal acts, cases, judicial pronouncements, and so on. The book has also drawn from secondary works like scholarly books, journals, articles, works of human rights activists while also noting popular material such as television shows and feature films.
Although the book is divided into six chapters, the chapters are all discreet units in themselves. What knits the book together is its thematic unity. It looks at the law’s struggle with violence by examining the relationship between torture and modernity, the jurisprudence of interrogation, the role of courts in conceptualising law and excess violence, understanding of torture in popular culture, torture as part of governmentality and the paradigm of the state of exception both in the case of the US and India.
The book, in moving away from a definitional understanding of torture, tries to trace it historically. With the coming of modernity, that is, the Enlightenment era and a ‘civilised society’, the standard western narratives talk of decline of torture. Tautologically, torture is associated with a barbaric and uncivilised society which has no place in modernity. The rhetoric of ‘impermissibility’ of torture in modern liberal democracies is used to de-emphasise the role of violence in the functioning of law and state. The book implicitly points out to the silence of legal-political theory on the issue of violence. Although when torture reappears in the legal-political discourse, the liberal democracies either follow a policy of denial or treat it as an ‘exception’. The attempt of the book is to contest this idea of ‘exception’ coming from Agamben’s work on ‘State of Exception’. Lokaneeta’s arguments point out that the state of exception paradigm may not be very useful in understanding the existence of torture in liberal democracies as it hints at creating two parallel regimes, one for routine times and the other for exceptional times. She is trying to break the routine–exception barrier and show that torture is as much a part of routine situation as of the exception. In fact, the continuities between the routine and the exception exist because routine laws actually help construct the exception (p. 167).
The work points out that it is in context of the ambivalence in the routine jurisprudence of interrogation that torture can be understood. In the US, there have been three regimes of Constitutional protection against torture—the Bram model, the Brown model and the Miranda model (p. 35). These cases, in their verdicts, dealt with the relationship between law and violence—the Miranda case even recognised that interrogation is inherently violent and coercive—but none of these cases could describe the limit of violence allowed or disallowed in interrogation.
In case of India too, she talks of three legal regimes that constitute the jurisprudence of interrogation, namely the right against self-incrimination, procedural safeguards and custody jurisprudence (p. 137). Despite these safeguards, the legal discourse has not been able to contain torture. Lokaneeta avoids making a comparative study, but the existence of similar legal regimes in both countries makes analogies possible. For instance, in India, the Satpathy vs. Dani case (1978) drew heavily from the Miranda model of the US, but was limited in its impact and was not used much as a precedent in cases dealing with custodial violence.
It can be deduced that in both the democracies either the jurisprudence is unable to theorise the limit of violence allowed or the theorisation is not carried forward. It is this ambivalent nature of jurisprudence of interrogation in theorising violence that allows for the existence of torture and at the same time denies it, as it is never formally recognised in positive law.
Interweaving the argument about ambivalence in jurisprudence, Lokaneeta talks of the role of ‘courts as normative institutions’ in conceptualising law and excess violence. There have been major silences in the verdicts on torture cases taken up by Supreme Courts. The Courts have been apprehensive in entering the fraught area of torture that could destabilise their position and have avoided taking up torture cases directly. The verdicts have mostly equated torture with physical violence and the attempt has been to highlight the decline of physical torture in interrogations to affirm the notion of impermissibility of torture. In this attempt, the other forms of violence remain unaddressed.
The book makes a major contribution in highlighting the forms of violence committed in the process of interrogation, which are not recognised as torture. To quote from Tzvetan Todorov’s book Torture and the War on Terror, working on the same theme: ‘“Torture Memo” was submitted by US Department of Justice’s Office of Legal Counsel in 2002...according to this Memo, sensory deprivation does not fall into the category of torture.’ Lokaneeta’s work identifies many such inherently violent methods which are not just used in interrogations but also routinised and sanitised, undermining the impact of the method on convicts. The sanitisation of these violent methods emerges as a strategy to not evoke the imagery of torture and hence follow the impermissibility logic. The study also focuses on the use of gender and religion as tools of interrogation that the mainstream official discourse never acknowledges.
While analysing the official non-recognition of different forms of violence as torture, the book tries to construct what counts as torture in the popular imagery, basing arguments on the image of torture presented in the US TV show ‘24’. The popular imagery of torture emphasises physical brutality, thereby presenting a limited definition of torture (p. 108). It helps the official legal discourse to get away with other forms of violence such as sleep deprivation, carried out at Guantanamo as routinised methods, as that does not evoke the imagery of torture in popular imagination. The popular image of torture also provides for its justification using the rhetoric of ‘necessity of public safety’ and ‘ticking bomb scenario’. The law becomes silent on the question of violence allowed once these justifications are played. The book also points out the theoretical existence of these justifications, that hardly echo the situation in reality. The same justification of torture can be attributed to her argument about extraordinary laws in context of India providing for abandonment of all legal safeguards against torture in the name of ‘national security’.
Taking the case of a late colony like India transforming itself into a liberal democracy, the study tries to unravel the colonial legacies on torture. The book draws from Partha Chatterjee’s frame of ‘colonial difference’ constructing an artificial separation between the native and the colonisers in the context of colonised India. The policemen were prone to committing excess violence owing to the irrationality of the natives and hence were always the perpetrators of torture, while England distanced itself from it. The post-colonial India, reveals the study, suffers from the same colonial prejudices against the lower police officials and for the same reason the lower rank officials are barred from recording confessions. It could be inferred that torture is often associated with lower police officials (p. 194). Lokaneeta illustrates this argument by citing a scene from the film ‘Slumdog Millionaire’. It shows the attempt of the book to connect with a wider audience by using popular icons, allowing them to relate to these illustrations.
Of the various arguments used to probe the central theme of the relationship between law, violence and state power in creating an understanding of torture in liberal democracies, the most insightful argument highlights the negotiation of state with violence mediated through law. It is the argument about torture as part of governmentality. She quotes Foucault on governmentality, ‘as a form of social control that actually channelizes the productive power of individuals and once again de-emphasizes the role of excess violence’ (p. 9). 1 However, Lokaneeta argues with Foucault and proposes that liberal democracies have actually managed to accommodate excess violence, contesting the Foucauldian argument about disappearance of excessive violence in modern democracies. Actually, ‘excess violence is accommodated in the art of the government’ (p. 101). She illustrates this point through the example of juridico-medical camps where medical professionals are used to accommodate excess violence, being made to develop new techniques in interrogation that would leave fewer visible marks. It is the constant negotiation on the part of the state using excess violence not to reach that level of violence where it would invoke the imagery of torture.
Through the argument on governmentality, there also appears to be an implied effort of the study to theorise the state. Though the study does not claim any theorisation of state, its understanding of state power constantly negotiating with excess violence to accommodate it does reflect upon the coercive nature of state which uses violence as an art of government. However, this coercive state in Lokaneeta’s understanding appears to be apprehensive about using outright violence and does it more legitimately, through the ambivalent relationship between law and violence. The state also manages to outsource violence through the juridico-medical complex.
Another implied conception that can be culled from the book is the conception of law in liberal democracies. Right from the Hobbesian Contract eliminating the state of lawlessness, law comes into being for ordering human society and is inherently coercive in its function. However, law is not inherently violent. This understanding flows from the discourse on torture in liberal democracies, where torture is the result of vagaries within the law in relation to the limit of violence allowed. The law appears to be silent on the question of violence in liberal democracy.
If one is to critically revisit the arguments of the book, there appear to be primarily four tensions. The first tension is the nature of relationship between law and violence. Lokaneeta’s understanding of the law’s ambivalence in relation to violence allowing for torture to exist in liberal democracy extends to explain even the extraordinary laws in the same framework. There appears to be a tension here when the functioning of extraordinary laws such as POTA, UAPA, and so on make the law itself unleash violence. Ujjwal Singh (2007) writes, in context of extraordinary laws, of the role of the law in the organisation of state violence. So the tension appears to lie in the theoretical project of the law’s relationship to violence—whether the law itself is inherently violent or if the violence is a product of the ambivalent nature of law.
The second tension appears to be in the understanding of law as inherently coercive but not inherently violent. The book unfortunately does not explore the distinction between coercion and violence.
The third tension emerges with regards to the book’s understanding of the role of courts as normative institutions apprehensive of entering the fraught area of torture, while trying to protect its legitimacy. On the one hand, in the wake of ‘judicialisation of politics’, the courts’ role as the imparter of justice in the last instance has earned them legitimacy. On the other hand, the verdicts of courts in favour of draconian laws such as upholding the constitutionality of POTA are indicative of attempts to not enter the fraught area of torture.
The fourth tension could be said to be that it is a study on torture, looking at the legal discourse of torture. However, it would be enriching to look at the forms of torture that exist within/outside the ambit of legality, that are not a result of the ambivalent relationship between law and violence. The tension is that the book does not say whether or not torture can be a repercussion of, or could be negotiated through, anything other than the law’s ambivalence to violence.
Nevertheless, the study represents an earnest attempt to analyse the relationship between law, violence and state power in explaining the existence of torture in liberal democracies and states its theoretical propositions with clarity through empirically substantiated details. The book gives an easy entry point, laying out its propositions right at the onset, and manages to prove its hypotheses about locating the debate on torture in liberal democracies in the inability of the liberal state to contain excess violence. Although the book works in a politico-legal framework, analysing legal acts and judicial pronouncements, it does not make itself unintelligible to the readers of a non-legal background.
The work on torture does offer some insights into theorisation of the nature of state through the lens of repressive state power. It also brings out nuanced arguments about race, religion and class while talking of the victims of torture. It hints at how tautology works in justification of categories created by the state, which would then be the target of state violence. However, the most interesting theoretical project of the book remains its critique of the ‘state of exception’ paradigm in explaining the existence of torture. ‘Ordinary’ is what defines the liberal democracy, and the book’s attempt to point out the existence of torture in the routine or ordinary rather than in exception problematises the self-definition of liberal democracy. The underlined intent is to move away from any objective and universalising definition of torture and look at it contextually. The book successfully lays a case for the same.