Beyond the erotics of Orientalism: Lawfare,torture and the racial–sexual grammars of legitimate suffering

Introduction

Chronicling the decade-long hunt for Osama bin Laden, Kathryn Bigelow’s film Zero Dark Thirty elicited notoriety weeks ahead of its release in January 2013. The movie’s depiction of the use of torture in the US Central Intelligence Agency’s struggle to locate Bin Laden gave rise to so much controversy that the frontrunner for the 2013 Oscars failed to win a single important Academy Award. Whether or not the film is simply a Riefenstahlesque piece of pro-torture propaganda, it speaks to some of the complex affective and material economies that have shaped the relations of possibility for the use of force in post-9/11 US national security-making. Zero Dark Thirty depicts ‘enhanced interrogation’ techniques such as waterboarding and sexualized humiliations and casts them as brutal acts of torture. As some of the film’s critics have noted, however, the movie leaves viewers with the impression that evidence gained through torture led to the discovery of Bin Laden’s Abbottabad compound, a claim that was virulently disputed by national security officials.

In the opening scene, CIA agent Dan takes Maya, another CIA agent and the film’s protagonist, into the interrogation of Saudi prisoner Ammar. Ammar looks horribly beaten up and refuses to provide Dan with the information he is looking for, so Dan threatens him with more torture and tells him that trying to resist the torture is futile, because ‘in the end everybody breaks, bro. It’s biology’. While in the end torture might well break all of its victims, contrary to the commonsense understanding of torture as a form of information-gathering, confessions made under the influence of torture produce notoriously unreliable data, and the overwhelming majority of interrogation experts and studies oppose the collection of intelligence via the use of torture. This is because most people are willing to say anything to stop the pain or to avoid being killed and/or are simply unable to remember accurate information owing to exhaustion and trauma.

If torture does not work, how is it, then, that in the wake of 9/11 the USA at the highest levels of government ran the risk of setting up a torture regime in violation of international and domestic law? Why alienate international support and increase political grievances against ‘America’ with the public display of controversial incarceration practices, such as those in Guantánamo Bay, instead of simply relying on the existing system of secret renditions? What is the intelligence value of grilling prisoners five years and more into detention about the existence of safe houses in Afghanistan (Begg and Brittain, 2006; Saar and Novak, 2005)? Furthermore, in the words of a former head of interrogations at Guantánamo Bay (McClintock, 2009: 64), most of the tortured and indefinitely detained are ‘Mickey Mouse’ prisoners, reportedly known not to be involved in or to have any information on criminal or terrorist activity against the USA and its allies. My article explores this puzzle by addressing two key questions: What is the value of these carceral practices when they do not produce actionable intelligence? And, what are the social relations and structures of feelings that make these carceral practices possible and desirable as technologies of security?

In the words of US President George W. Bush (2004), the big lesson of 9/11 for US national security-making was that ‘this country must go on the offense and stay on the offense’. This view of offensive warfare as self-defence and as the necessary and legitimate response to the threat of Islamic terrorism ushered in the institutionalization of the preventative or preemptive use of military and carceral force and became known as the Bush doctrine (Agathangelou, 2010b; Anghie, 2004; De Goede, 2008). This narrative on the preemptive use of military and carceral force along a global frontier as self-defence, necessary and legitimate, is rooted in gendered racial–sexual logics. While much of international relations scholarship attentive to the critical role of Orientalism in the War on Terror’s politics of life and death addresses racialized representations without theorizing the fungibility of relational ¹ racialization, this article is part of a larger research project tracing how contemporary security discourses are produced in relationship to the figure of the Native Indian and the figure of the Black, and their underpinning grammars of legitimate suffering. As Sara Ahmed writes in The Cultural Politics of Emotions, ‘the word terrorist sticks to some bodies as it reopens past histories of naming, just as it slides into other words’ (cited in Puar, 2007: 185).

Specifically, this article connects the carceral violences in the racialized lawfare against Muslimified people and spaces to the capture and enslavement of Africans and the concomitant production of the figure of the Black body as the site of enslaveability and openness to gratuitous violence (Agathangelou, 2010a; Fanon, 1967; Hartman, 1997; Mbembe, 2003; Patterson, 1982; Sexton, 2007, 2010; Sharpe, 2010; Wilderson, 2010). Building on the work of Andrea Smith (2012) and others, the premise of this article is that we can only meaningfully interrogate the operations of violence (including against Orientalized subjects) in contemporary US security-making by accounting for the foundational role of anti-Black racism and the settler-colonial character of the US social formation. As will be the focus of this article, locating the use of torture and other seemingly valueless carceral security practices within the genealogies of anti-Black violence points to their fundamental role in the production of the larger biopolitical order and its underpinning processes of de/valuing populations. Importantly, the so-called torture memos and concomitant carceral practices are not only shaped by the gendered racial–sexual logics of slave laws, but constitute a key site and technology of gendered and sexualized race-making in this era of ‘post-racial triumph’ (HoSang and LaBennett, 2012: 5).

I will first discuss the myth of the instrumental rationality of torture. In a second step, I examine the lawfare around the legalization of state-administered suffering in custody, with a focus on the Bush administration’s ‘Torture Papers’, as collected by Greenberg and Dratel (2005). I explore how the law gets mobilized as a technology of security in the management of populations and the production of the larger liberal order. Based on a performative understanding of power, the article then turns to a discussion of the productive effects of various carceral violences, understanding them not ‘simply’ as effects of racist violence but as giving rise to interlocking (non)normative classed national, racial, gender and sexual formations and subjects. These security practices facilitate the production of both the figure of the Muslim = terrorist and the civilizational Whiteness of the torturer and those who feel their lives cared for by these biopolitical acts.

The myth of the instrumental use of torture

Contrary to commonsense understandings and cultural representations like Zero Dark Thirty, the effects of extreme pain and suffering on the body are complex and difficult to predict, and hence it impossible to administer extreme suffering in a controlled way. Despite the enormous efforts and resources invested, the USA’s post-9/11 global torture regime yielded not a single documented case of actionable data. If anything, critics including former CIA agents and other US intelligence officials argue that the use of torture has led to blowbacks due to false intelligence and disrupted relationships with prisoners who cooperated. ²

As an army intelligence agent bluntly told investigative journalist Seymour Hersh (2004: 66): ‘They’ll [tortured prisoners] tell you what you want to hear, truth or no truth…. You can flog me until I tell you what I know you want me to say. You don’t get righteous information.’ Also, more injury does not necessarily produce more pain but can lead to desensitization, render the tortured unconscious, and thus lead to delays or premature death and hence loss of control over the interrogee (Rejali, 2009: 446–453). The administration of pain may also strengthen prisoners’ resistance and typically results in even cooperative prisoners being unable to recall even simple information of the past, in particular the recent past, or may cause the ‘illusion of knowing’ due to sleep loss, exhaustion or brain trauma (Rejali, 2009: 466–468). These complexities are acknowledged in the CIA manuals on interrogation, KUBARK Counterintelligence Interrogation (CIA, 1963) and the unedited Human Resources Exploitation Training Manual (CIA, 1983) (Rejali, 2009: 462), as well as in the US Army’s (1992) Field Manual on Interrogation. ³ As a survivor of torture notes on the effects and limits of extreme pain,

All individual acts of torture have their limits, just as our bodies have limits of endurance. When the infliction of pain reaches the latter limits, the body and spirit protect themselves by lapsing into unconsciousness…. This is the beginning of the victory over torturers and tortures alike. (Cited in Rejali, 2009: 475)

Maybe the most prominent declassified blowback due to torture in the War on Terror is the case of Ibn al-Shaykh al-Libi. Al-Libi was rendered to Egypt for interrogation and during torture falsely admitted to close ties between Iraq and Al-Qaeda. His confession was the foundation of the Bush administration’s erroneous claim that Iraq trained Al-Qaeda members to use biological and chemical weapons, and hence fundamental to its case for war against Iraq (Jehl, 2005; see also Rejali, 2009: 504–505).

A few weeks following the release of the ‘torture memos’ by the US Department of Justice in Spring 2009, Ali Soufan (2009), a supervisory special agent with the US Federal Bureau of Investigation (FBI) from 1997 to 2005, came forward in an op-ed in the New York Times on what he views as the ‘false claims magnifying the effectiveness of the so-called enhanced interrogation techniques like waterboarding’. Soufan maintains that the torture memos are based on false premises. The first memo authorizing the use of ‘enhanced interrogation’ practices was created specifically for Abu Zubaydah, an alleged high-ranking Al-Qaeda member who turned out to be responsible for minor logistics, such as making travel arrangements for the wives of Al-Qaeda members (Rejali, 2009: 505). Zubaydah was the first prisoner to be exposed to waterboarding and other forms of torture under the newly emerging torture policy. The rationale provided for the adoption of these measures was that conventional interrogation techniques had not worked on him. The three torture memos created in the wake of Zubaydah’s torture made the claim that ‘enhanced interrogation’ methods had worked well, and therefore called for their continued use (Soufan, 2009).

Together with another FBI agent, and with several CIA officers present, Soufan interrogated Zubaydah from March to June 2002. He maintains that Zubaydah was cooperative and provided him and his partner with ‘important actionable intelligence’ (Soufan, 2009). With the help of traditional interrogation methods, the FBI agents identified Khalid Shaikh Mohammed as the mastermind behind the 9/11 attacks (see also Rejali, 2009: 506) and were told about José Padilla, the so-called dirty bomber. Two months later, the torture of Zubaydah by CIA agents began, and Soufan maintains that ‘there was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics’.

In his formative study Torture and Democracy, Rejali (2009: 456–460, 506) argues that permitting the use of torture leads to a ‘deskilling’ of state agents who deploy force on prisoners as a short cut and neglect traditional intelligence-gathering. Soufan and other intelligence officials argue that the different positions of the CIA and the FBI on the value and legality of the use of torture has kept them from working together:

Because the bureau would not employ these problematic techniques, our agents who knew the most about the terrorists could have no part in the investigation. An FBI colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him. (Soufan, 2009)

Not only is the collection of intelligence via the use of torture considered ineffective, but most of the prisoners in Guantánamo Bay, Bagram and Abu Ghraib have been indefinitely detained despite being deemed innocent of any criminal or terrorist activity against the USA and its allies. In early 2002, Michael Dunlavey, then head of interrogations at Guantánamo Bay, complained that he was receiving only what he called ‘Mickey Mouse’ prisoners (McClintock, 2009: 64). In June 2004, the New York Times reported on a top-secret September 2002 CIA study about the intelligence value of Guantánamo prisoners. The study concluded that ‘many of the accused terrorists appear to be low-level recruits who went to Afghanistan to support the Taliban or even innocent men swept up in the chaos of the war’ (cited in Rose, 2004: 42). According to officials who read the report, ‘only a relative handful – some put the number at about a dozen, others more than two dozen – were sworn al-Qaeda members or other militants able to elucidate the organization’s inner workings’, and of those not one was a ‘senior operative’ (cited in Rose, 2004: 42). Only 5% of those detained were picked up ‘on anything that could be called a battlefield’ (McClintock, 2009: 64). Most of them were arrested in exchange for bounties in the range of US$5000 to $10,000 ‘by such dubious forces as the Northern Alliance, the Pakistani military and intelligence, … sometimes betrayed by neighbors or by people simply seeking remuneration’ (McClintock, 2009: 65).

In 2004, two years after the first prisoners arrived, Steve Rodriguez, Dunlavey’s successor as head of interrogations at Guantánamo, maintained that of the maybe 700 prisoners at that time, only somewhere between 20 and 50 ‘are providing critical information today’ (Center for Constitutional Rights, 2006: 9). In the same year, Lt. Col. Anthony Christino stated ‘that there is a continuing intelligence value … for [s]omewhere a[round] a few dozen, a few score at the most’ of the Guantánamo prisoners (Center for Constitutional Rights, 2006: 9). Even the Combatant Status Review Tribunals determined that 55% of all prisoners did not commit ‘any hostile act against the US or its coalition allies’ (Center for Constitutional Rights, 2006: 8; see also Rejali, 2009: 510). Eighty-six percent of these prisoners were captured by either Pakistan or the Northern Alliance in the context of the US policy of paying large rewards for the arrest of suspected Al-Qaeda or Taliban supporters (Center for Constitutional Rights, 2006: 9). The detention of people considered innocent continues under US President Barack Obama. In late August 2009, General Douglas Stoke, who was asked to prepare a classified report on detainee operations, ‘told senior military officials that at least two thirds of Bagram detainees pose no threat to the US or Afghanistan, and recommended their release’ (Hajjar, 2011c).

Similarly, a February 2004 report by the International Committee of the Red Cross states that US military intelligence officials estimate that 70–90% of all prisoners detained in Iraq had been arrested by mistake or had no intelligence value (Jaffer and Singh, 2007: 35; McKelvey, 2007: 15). In a sworn statement from May 2004, a former commander of the 320th Military Police Battalion stationed at Abu Ghraib states ‘that the majority of our detainees were detained as the result of being in the wrong place at the wrong time, and were swept up by Coalition Forces as peripheral bystanders during raids … [and] only one in ten detainees were of any particular intelligence value’ (cited in Jaffer and Singh, 2007: 35). In another sworn statement, a sergeant assigned to the Detainee Assessment Board and hence responsible for screening prisoners for release at Abu Ghraib states that ‘85% to 90% of detainees were of either no intelligence value or were of value but innocent and therefore should not have remained in captivity’ (cited in Jaffer and Singh, 2007: 35). In short, nearly all Abu Ghraib prisoners ‘had no discernible connection to terrorism or insurgency’, yet the detention and torture of prisoners by military personnel ‘was accepted as standard practice, even outside the interrogation context’ (cited in Jaffer and Singh, 2007: 35).

Legalizing torture: All roads lead to Abu Ghraib, none to Rome ⁴

Some will ask whether a civilized nation – a nation of law and not of men – can use the law to defend itself from barbarians and remain civilized. Our answer, unequivocally, is ‘yes.’ Yes, we will defend civilization. (US Attorney General John Ashcroft, 2001)

Juridical warfare or lawfare has come to play a prominent role in the production of US global power at the current juncture (see Morrissey, 2011). While discussions of the detention centre in Guantánamo Bay and more recently the use of extrajudicial killings via drones outside of war zones evoke a state of lawlessness or exception, both the Bush and the Obama administrations have gone to great pains not to simply declare a state of exception and suspend the law. Rather, they have sought to legalize a wide range of lethal and non-lethal security practices, including capture, rendition, ⁵ indefinite detention, ‘enhanced’ interrogation and targeted killings, some of which remain classified. In the following, I will briefly lay out some of the key post-9/11 legal manoeuvres of the Bush administration in relation to the use of carceral violence as a mode of national security-making.

In an article that has been widely cited by US national security theorists, Major General Charles Dunlap, Jr, defines lawfare as the ‘strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective’ (Dunlap, 2008: 146). Even though Dunlap and others drawing on his work evoke the concept of lawfare to denounce the use of law, in particular human rights and the laws of war, as a weapon of war against the United States, I deploy this concept to trace the ways in which law is used by the US security state to enable a range of carceral security practices in the War on Terror. As I will discuss, post-9/11 carceral lawfare rests on two main pillars: the newly created legal classification ‘unlawful enemy combatant’ and the meaning of the words ‘cruel and unusual’.

International law is unequivocal about the absolute and universally applicable prohibition of torture, ⁶ yet in the post-9/11 lawfare the Bush administration juridically codified that abuse just short of killing a prisoner was considered permissible suffering. Less than a week after the 9/11 attacks, President Bush signed a memorandum of understanding that authorized the CIA to establish a secret overseas detention and interrogation operation. The memo upgraded the existing Clinton-era authorization to transfer arrested terror suspects to third countries by extending the rendition of suspects to secret US-run detention sites across the globe. This policy permits the CIA to kidnap people from anywhere in the world and disappear them into secret prisons where they can be held incommunicado as so-called ghost detainees, or transferred extralegally for interrogation to allied states that practise torture, such as Morocco, Syria and Egypt (Bassiouni, 2010; Brody, 2005; Hajjar, 2009, 2011a).

By December 2001, Pentagon officials were trying to obtain authorization for interrogation methods beyond those listed in the Army’s (1992) Field Manual. To develop more effective interrogation techniques, they sought to ‘reverse engineer’ the techniques of a Cold War programme called Survival, Evasion, Resistance, Extraction (SERE), which had been designed to help captured US soldiers withstand interrogation and torture in the event that they were captured by enemy forces that did not adhere to the Geneva Convention (Bassiouni, 2010; Hajjar, 2009; Jaffer and Singh, 2007: 4–5; Rejali, 2009). By December 2002, drawing on techniques used in the SERE programme and other aggressive interrogation methods, the US Department of Defense created a draft document entitled ‘JTF GTMO SERE INTERROGATION SOP’ (Jaffer and Singh, 2007: 5–6).

In January 2002, the first prisoners arrived in Guantánamo Bay. At a Department of Defense media briefing on 11 January 2002, US Secretary of Defense Donald Rumsfeld announced that ‘they will be handled not as prisoners of wars, because they’re not, but as unlawful combatants’. He added that ‘technically unlawful combatants do not have any rights under the Geneva Convention’ (Rozenberg, 2002). Two weeks later, on 25 January 2002, White House Counsel Alberto Gonzales (2002) advised Bush in a memorandum that the war against terrorism was a ‘new kind of war’, ⁷ one that rendered the terms of the Geneva Conventions inapplicable:

The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians…. [T]his new paradigm renders obsolete Geneva’s strict limitations on questioning enemy prisoners.

Primarily on the basis of the Gonzales memo, on 7 February 2002, Bush issued a directive to the US National Security Council declaring that captured Al-Qaeda and Taliban fighters were not prisoners of war, and henceforth the Geneva Conventions did not apply to them. Rather than simply suspending or ignoring existing laws around the treatment of prisoners, prisoners of war and the prohibition of torture, the Bush administration carefully sought to clear the ground for what critics consider an official torture policy. The emerging torture policy was contested by various government officials and legal councils, in particular among those working for the Judge Advocate General and the State Department. The 7 February directive sought to sway them with the line that US forces ‘shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva’. Yet, as Hajjar (2011a) so succinctly notes,

The message moving down the chain of command from Washington to Afghanistan and Guantánamo was not the imperative of humane treatment but rather the license to harshly interrogate anyone in US custody as a potentially guilty font of valuable information. Prisoners’ demonstrations of innocence or ignorance were interpreted as signs of their deceptive skillfulness.

At the heart of this lawfare is the newly created legal classification ‘unlawful enemy combatant’ for those captured in the War on Terror, which effectively places them outside the reach of the laws of war and the rule of law more generally. The memos established that unlawful enemy combatants detained in offshore detention facilities have no right to access US courts and that the judiciary has no oversight role for the government’s overseas detention policies (Hajjar, 2011b). Moreover, instead of determining unlawful enemy combatant status by a review tribunal, in his directive of 7 February, President Bush declared that ‘I … determine that none of the provisions of Geneva apply to our conflict with Al Qaeda in Afghanistan or elsewhere throughout the world’. The Bush administration claimed that, via executive fiat, the President had the unilateral authority ‘to arrest virtually anyone, anywhere, noncitizen or citizen, even in the United States, if he deemed them an enemy combatant’ (Ratner and Ray, 2004: 25). By leaving it up to Bush’s discretion (via presidential decree) to declare a captured prisoner ‘unlawful enemy combatant’, this provision of course ‘effectively conflated being in custody with an uncontestable presumption of guilt’ (Hajjar, 2011a).

Increasing anxieties among CIA staff about the potential for future prosecution led government lawyers in the Office of Legal Counsel to create two memos dated 1 August 2002, known today as the ‘torture memos’. In his memorandum on ‘Standards of Conduct for Interrogation under 18 U.S.C. §§2340–2340A’ to White House legal counsel Alberto Gonzales, Assistant Attorney Jay Bybee (2002) dramatically narrows down the definition of torture ‘to only the most extreme forms of physical and mental harm’ and ‘the most egregious contact’. Bybee argues that the key phrase in the US Code’s definition of torture is that it causes ‘severe physical and mental pain or suffering’ (my emphasis): ‘Certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within proscription against torture.’ For an act to constitute torture,

the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure…. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious injury, such as organ failure, impairment of bodily function, or even death. (Bybee, 2002)

In Bybee’s reading, then, physical torture excludes anything less severe than ‘the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death’. The memo also limits the understanding of mental torture, arguing that ‘severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm’. Hence, ‘cruel, inhuman or degrading treatment would not constitute mental torture unless it caused effects that lasted “months or even years”’. Importantly, the memo stresses that for an action to ‘reach the threshold of torture in the criminal context’ it requires specific intent, not simply general intent, meaning ‘the infliction of such [severe] pain must be the defendant’s precise objective’ (my emphasis). Therefore, Bybee concludes, ‘even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith’.

Bybee’s reasoning draws on an understanding that the administration of George H. W. Bush submitted at the time of the ratification of the Convention Against Torture, which declared:

The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain and suffering and that mental pain or suffering refers to prolonged mental pain caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality (my emphasis).

Bybee further argues that

As Commander-in-Chief, President Bush has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy…. Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.

Henceforth, he reasons that any legal limits on the ways interrogations on enemy combatants are being conducted ‘would be an unconstitutional infringement of the President’s authority to conduct war’. Finally, violations of US law regarding torture may be justified by ‘necessity or self-defense … to elicit information to prevent a direct and imminent threat to the United States and its citizens’. In Bybee’s words:

the nation’s right to self-defense has been triggered by the events of September 11. If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate Section 2340A, he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network. In that case, we believe that he could argue that his actions were justified by the executive branch’s constitutional authority to protect the nation from attack.

The second memo of 1 August 2002, prepared for Gonzales by Deputy Assistant Attorney General John Yoo, discusses the legality of ‘enhanced interrogation methods’ under international law, essentially replicating much of Bybee’s memo. Yoo argues that abuse does not constitute torture under US law unless it inflicts pain ‘equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death’, and involves the ‘specific intent’ of the defendant. Like Bybee, he opines that in his capacity as commander-in-chief, President Bush has the authority to overwrite any US laws banning the use of torture.

Beyond legal subjugation? Torture memos, Blackness and sovereignty

In the ‘excesses’ of torture, a whole economy of power is invested. (Foucault, 1977: 35)

The torture memos extend the official battlefield in the War on Terror away from the declared war zones in Afghanistan and Iraq, into a network of secret CIA-run detention chambers across the globe. Framing enhanced interrogation as an act of national self-defence, the memos render lawful the infliction of any pain and suffering on unarmed prisoners that is short of ‘the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death’. In fact wounding, maiming and other technologies of violence considered less severe than those defined as torture by the memos become vital for the life of the nation, rendering the application of preemptive force in the form of enhanced interrogation critical to the biopolitical management of life in the War on Terror. By inflicting suffering on the enemy, the torturer ‘becomes the ultimate carer for the nation – the privileged “nationalist manager”’ (Hage, 2000; Kuntsman, 2009: 124).

While liberal critics of the Bush administration’s torture policy deplored the return to medieval forms of punishment (e.g. Rose, 2008), Bybee’s and Yoo’s codification of extreme forms of violence on those in state custody in the War on Terror are informed by gendered racial–sexual logics that historically bring about ‘the absolute divestment of sovereignty at the site of the black body’ (Sexton, 2006: 252). These logics and concomitant security practices continue to circulate, in particular via the settler colony’s prison-industrial complex. As traced by Dayan (2007, 2011), the memos’ distinction between legal/ized and illegal/ized cruelty or infliction of pain and suffering and their central focus on the question of intent rather than effect or reasonable expectation is rooted in the legal imaginaries and practices of slave laws and black codes. In the following, I will discuss how the affective and material economies of chattel slavery continue to circulate and shape security practices and the management of populations, including via securitizing technologies of legal subjugation.

Key to the ossification of the racialized categories of Black and White and the overall racialized order was the governance of sexuality and gender. From about 1660 on, a range of laws were enacted seeking to prevent ‘mixed’ marriages and ‘miscegenation’, and with that the status of servants marked ‘White’ and ‘Black’ began to diverge significantly (McNally, 2002: 109; Morgan, 1975). The new laws specified that the children of European women in servitude would automatically be servants themselves until the age of 20 if the child’s father was African, and the woman ‘would suffer severe public whipping and see her own service extended by as much as seven years’ (Roediger, 2008: 6). The severity and visual display of the punishments suggest that the rages of male racialized sexual anxiety are rooted in (some) women being not only ‘desired objects’ but ‘unruly desiring subjects’, as Stoler (1995: 41) puts it in a different colonial context. By 1691, Virginia had criminalized ‘negroes, mulattoes, and Indians intermarrying with English, or other white women’ and even rendered ‘unlawfull accompanying with one another’ (Morgan, 1975: 335). ⁸ Yet, while the children of enslaved African women automatically constituted property, and hence the sexual assault of enslaved women by their master potentially increased the latter’s property, by law White women who did not engage in ‘interracial’ sex could give birth only to free children (Roediger, 2008: 28–29).

Moreover, while enslaved people were punished typically on the naked skin and in public, in 1705 a new law authorizing the dismemberment of unruly slaves made it unlawful for masters to ‘whip a christian white servant naked, without an order from a justice of the peace’, reserving forced nudity for ‘a brutish sort of people’ only (cited in Morgan, 1975: 331). This sexualized racist logic intersects with discourses of animalism that cast Black bodies as closer to animals, as having thicker skin and hence able to endure more pain, and therefore as requiring different forms of corporeal punishment. Finally, anti-Black and other modern racist discourses commonly ascribe lust to animals – ‘raw, untamed/uncivilized sexuality’ (Hoch, 1979: 51).

Slave laws produced the enslaved as civilly dead, a subject that became recognized as a person only when committing a crime (Dayan, 2011: 89). ‘Not simply things and not really human, slaves occupied a curiously nuanced category’ (Dayan, 2011: 139). As a result, while in principle the killing of a slave was murder both in the British colonies of the New World and later in the newly founded settler-colonial republic, slave codes and later black codes legalized extreme suffering, including corporal mutilation. In 1669, the Virginia assembly passed an act ‘about the casuall killing of slaves’, which established that

if any slave resist his master (or other by his masters order correcting him) and by the extremity of the correction should chance to die, that his death shall not be accompted Felony, but the master (or that other person appointed by the master to punish him) be acquit from molestation, since it cannot be presumed that prepensed malice (which alone makes murther Felony) should induce any man to destroy his own estate. (Cited in Morgan, 1975: 312)

This legislation enshrined the principles that informed later legislation codifying the right to correct slaves ‘to the point of killing them’ (Morgan, 1975: 312). In conjunction with a later law that sought to eliminate the ‘problem’ of runaway slaves by providing that it would ‘be lawful for any person or persons whatsoever, to kill and destroy such slaves by such ways and means as he, she, or they shall think fit, without accusation or impeachment of any crime for the same’ (cited in Morgan, 1975: 312–323), this legislation gave rise to a legal regime authorizing ‘not merely an open season on outlying slaves, but also the deliberate maiming of captured slaves’ (Morgan, 1975: 313). Citing John Haywood’s (1808) A Manual of the Laws of North Carolina, Dayan (2007: 12) explains that a person would not be judged ‘guilty of willfully and maliciously killing a slave’ if the slave had died ‘under moderate correction’. The 1851 penal code of Georgia put limits on the permissible suffering of slaves, prohibiting ‘unnecessary and excessive whipping, beating, cutting or wounding … cruelly and unnecessarily biting and tearing with dogs … withholding proper food and sustenance’ (cited in Dayan, 2007: 13). Dayan (2007: 12) further engages Haywood’s manual and argues that framing as ‘moderate’ a ‘correction’ that causes death ‘is to assure that old abuses would continue, made legitimate by vague standards’.

Punitive corporeal practices like whipping, branding, forced nudity and the use of dogs were critical to the subjugation of those being marked Black, in ways that went beyond their immediate repressive function and effects. The spectacular inscription of violent subjugation marks the boundaries between ‘us’ and ‘them’, ranks bodies within the larger social order, and helps turn socially recognized categories of difference, such as race, gender, sexuality and religion, into bodily difference (Rao and Pierce, 2006: 21; see also Wacquant, 2002), as the very performance of violent bodily domination provides the visual ‘proof’ for ‘their’ social difference and hence differential status (see also Philipose, 2007). Therefore, while the legal decapacitation of captured Africans and their descendants was foundational to the production of Whiteness and White settler freedom (Sharpe, 2010: 15), racialized taxonomies and the larger racial formation they gave rise to were not simply manufactured by law. Rather, law was shaped by, and simultaneously enabled a wider set of, processes and technologies of race-making, in particular, twin racial discourses of sexuality and animalism, and spectacular inscriptions of violence.

The racialized caste system based on the hierarchies of modern racism allowed propertyless Whites to be affectively and materially invested in the settler colony, for instance by enlisting them as slave patrols and by allowing White servants to bully and attack enslaved people with impunity, ‘placing them psychologically on a par with masters’ (Morgan, 1975: 331). This system enabled Whites of all classes to take pleasure in the crimes of slavery beyond the wage of Whiteness. As Saidiya Hartman holds, ‘the crimes of slavery are not only witnessed but staged’, and the ‘constitution of blackness as an abject and degraded condition and the fascination with the other’s enjoyment went hand in hand’ (cited in Sharpe, 2010: 112). ‘Antebellum slavery’s multiple horrors and pleasures are staged at the whipping post, in enslaved people’s forced performances of affect, like singing and “stepping-it-lively” on the coffle and on the auction block’ (Sharpe, 2010: 112).

With the formal end of slavery, antebellum slave patrols gave way to the sexualized terror regime of public lynch mobs. Centred on the mutilation of the genitals of primarily those gendered as Black men and boys and the rape of primarily those gendered as women and girls, hypersexualized acts of torture once again produced the Black body as the site and source of Black pathology, and hence a boundary marker against which one could determine acceptable or respectable sexuality, masculinity/femininity and morality (Douglas, 2002: 4). As anti-lynching activist Ida B. Wells observed at the time: ‘To lynch for a certain crime not only concedes the right to lynch any person for any crime but it is in a fair way to stamp us a race of rapists and desperadoes’ (cited in Gilmore, 2009: 80).

The official abolition of slavery did not do away with the legality of slavery and a range of punitive practices bringing about corporeal pain and suffering short of death. The 13th Amendment (1865) to the US Constitution notoriously prohibits slavery ‘except as a punishment for crime whereof the party shall have been duly convicted’. Moreover, immediately after the 14th (1868) and 15th (1870) Amendments came into effect, nearly all former Confederate states created so-called black codes that left Blacks ‘as vulnerable to exploitation and violence as they were during slavery’ (Jun, 2011: 302). The 13th Amendment and other civil rights hence did not undo racial slavery, but rather transformed it (Hartman, 1997: 10), transferring – in Angela Davis’s words – ‘black people from the prison of slavery to the slavery of prison’ (cited in Rodríguez, 2007: 39). The production of the convict as civilly dead or the ‘slave of the state’, as a judge put it in 1871 (cited in Dayan, 2011: 61), continues to draw on the legal gymnastics of slave law, ascribing the felon full criminal responsibility yet less than full personhood.

Since the mass mobilizations of the 1960s, the judicial system has legislated cruelty in prison as a matter of routine, producing the civil death of prisoners through a range of measures, including indefinite solitary confinement and denial of access to the courts. As Dayan (2007: 45–46) notes, ‘Under cover of “legitimacy” and “reasonableness,” using terms like “decency” and “basic human needs,” the courts have sustained a brutalization that might not leave physical marks but that recreates the civil, legal, and political incapacitation of slavery’. Deploying the logic of the slave laws, specifically the requirement for intent in order for even the most gruesome acts of violence to qualify as cruel and unusual punishment, recent decisions of the US Supreme Court have ‘literally stripped [prisoners] of the right to experience suffering’ (Dayan, 2011: 195), rendering them dead in law, and hence reducing the prisoner to cadaver, devoid of mental ‘interiority’ and ‘no longer even a victim’, but simply blood and flesh (Dayan, 2011: 181).

The vulnerability of bodies marked as Black to violence and hyperexploitation of their labour is a matter beyond legal subjugation. Modernity not only gave rise to an ontology of racial slavery, but in fact was made possible by the rise of this new ontology in which Africans are disappeared onto slave ships and disembark in the New World as Blacks = slaves = socially dead (Wilderson, 2010: 38; see also Sexton, 2007). As Sharpe (2010: 122) notes, drawing on Dionne Brand,

Discursively produced in ways that signify enslavement and its excesses, black bodies are made to bear the burden of this signification … in ways that white and other raced bodies do not; as they are ‘bodies occupied, emptied and occupied,’ and visibly marked in Euro-American contexts as the descendants of the Atlantic slave trade, they still have currency ‘as physically and psychically open space’.

Accordingly, enslavedness as ontology survives the institution of chattel slavery and continues to produce Blackness as signifying enslaveability and openness to gratuitous violence (Agathangelou, 2010a; Fanon, 1967; Hartman, 1997; Mbembe, 2003; Patterson, 1982; Sexton, 2006; Sharpe, 2010; Wilderson, 2010). These logics of Blackness do not ‘simply’ provide legitimization of suffering, but rather disavow injury by casting the capture, murder, rape and maiming of Black bodies a ‘structural impossibility’ (Agathangelou, 2010a: 200) and, concomitantly, continue to produce the Human. They make possible the legalization of extreme corporeal suffering and mutilation or wounding just short of ‘pain accompanying serious injury, such as organ failure, impairment of bodily function, or even death’. Moreover, framing so vaguely the limits to cruelty against those suspected of terror is – to borrow from Dayan in the context of racial plantation slavery – ‘to assure that old abuses would continue, made legitimate by vague standards’:

the license to fall short of what might be considered inhumane lay in the unsaid – or in language deliberately unclear or hypothetical. . . . When the use of whips, cudgels, and dogs was not only possible but to be expected, the effort to enshrine descriptions of gratuitous and extreme cruelty in law became only a guarantee of tyranny. It allowed masters to hide behind the law and ensured that their posture of care would remain a humane fiction. (Dayan, 2007: 12–13)

To conclude, the torture memos’ distinction between legal and illegal cruelty and their central focus on the question of intent rather than effect or reasonable expectation is rooted in the legal imaginaries and practices of racialized chattel slavery and its aftermath. As I explore in more depth next, the torture memos and the concomitant racialized distribution of state-administered force and cruelty in custody are not simply shaped by racial–sexual logics: these legal documents and associated carceral practices constitute key technologies of gendered and sexed race-making.

Erotics of racism and the biopolitics of torture

The tortured body … must produce … the truth of the crime. (Foucault, 1977: 35)

Torture is commonly understood and rationalized as a form of information-gathering that consists of ‘a primary physical act, the infliction of pain, and a primary verbal act, the interrogation’ (Scarry, 1985: 28, my emphasis). As already discussed, contrary to such a commonsense understanding of the rationale and effects of torture, this form of interrogation is considered ineffective in terms of providing actionable intelligence. On the basis of a performative understanding of power, I explore how carceral security practices like human capture and torture restore and eroticize the display of state authority and racist subjugation in the wake of the emasculating ⁹ national security crisis termed ‘9/11’.

In her research on the prison memoirs of ciswomen ¹⁰ incarcerated in the dungeons of various Latin American military dictatorships during the 1970s and 1980s, Mary Jane Treacy comes to the conclusion that interrogations of prisoners were not primarily about gathering facts, because ‘many prisoners had little or no knowledge to give prison authorities’. Drawing on Frank Graziano, Treacy (1996: 132) argues that the questioning and accompanying physical assault formed the core of a ‘ritual enactment of power’ where ‘the prison interrogation room and its torture table became “stages” where the prisoner, having lost control over her body, now lost control over her voice’:

It was then not what the victims being interrogated said that motivated the continuation of torture, but rather that they were being made to use their speech against themselves, that their voices were being appropriated and translated into the power that destroyed them…. Whatever was said, the regime was speaking. Whatever response the victims managed to articulate was subordinated before it was uttered. The victim could only announce their absorption into a monologue that edified the State. (Graziano cited in Treacy, 1996: 132)

In her classic study The Body in Pain, Elaine Scarry (1985: 29) argues similarly that ‘the fact that something is asked as if the content of the answers matters does not mean that it matters’, noting that ‘while the content of the prisoner’s answer is only sometimes important to the regime, the form of the answer, the fact of his answering, is always crucial’. Scarry (1985: 29) argues that the purpose of torture is ‘to deconstruct the prisoner’s voice’. In short, ‘pain becomes power’ (Scarry, 1985: 37), with the body of the tortured constituting the stage or the site of the production of the state’s and the ‘petty sovereign’s’ (Butler, 2004) sovereign power (Mertus and Rawls, 2008: 34).

State-administered security practices like torture and detention do not simply constitute a display of authority and domination, but produce state sovereignty and subjection through the very exercise of terror (Rodríguez, 2006: 162). Reading power performatively, the arrest and detention of a prisoner population of which up to 90% are ‘Mickey Mouse’ prisoners in Guantánamo, Bagram and Abu Ghraib no longer appear as ineffective and absurd examples of operational failure. What renders these seemingly unproductive/counterproductive practices of security desirable and of value is their capacity to mobilize the state as spectacle (see also Feldman, 1991: 84–89). As Feldman writes,

The performance of torture does not apply power; rather it manufactures it from the ‘raw’ ingredients of the captive’s body. The surface of the body is the stage where the state is made to appear as an effective material force…. The state (m)others bodies in order to engender itself. The production of bodies – political subjects – is the self-production of the state. (Cited in Rodríguez, 2006: 162)

It is against the background of the profound national security crisis triggered by less than two dozen individuals armed only with box cutters that we can make sense of the desire to openly display excessively shackled prisoners in bright orange jumpsuits who are known to be cruelly and illegally detained. As Comaroff (2007: 400) notes,

Camp Delta gives the state a space by means of which it can represent the fruits of its military operations, a kind of virtual, offshore museum of victory-in-the-making, which is demonstrably ‘there’ but can be seen only in the most veiled of representations: depersonalized images of orange jumpsuits, rendered uniform by metal mesh and wire, the ephemera of incarceration.

These performances of state power assume even greater centrality when outright military defeat of the Other proves unattainable (Feldman, 1991: 88).

Furthermore, acts of carceral violence like torture and detention are a spectacle not simply because they can be observed but, in Gail Mason’s (2006: 177) words,

more fundamentally, because [they are] a mechanism through which we observe and define other things. Violence has the capacity to shape the ways that we see, and thereby come to know, these things. In other words, violence is more than a practice that acts upon the bodies of individual subjects to inflict harm and injury. It is, metaphorically speaking, also a way of looking at these subjects.

Torture as epistemology, then, is productive of differential status not only between torturer and tortured in the prison cell, but between those populations that can be tortured and those that will not. Treating those captured as ‘enemy combatants’ and ‘detainees’ instead of prisoners of war not only facilitates their legal subjugation, but also marks them as outside the rule of law, and hence as less than fellow human. As discussed earlier, critical to the making of the enslaved = figure of the Black was not simply legal subjugation, but a carceral regime based on punitive corporeal practices like whipping, beating, forced nudity and the use of dogs. The distinction between populations subject to penal techniques involving forced nudity and other technologies of sexualization and those protected from this humiliation was critical to the racialized ordering of the settler colony.

As depicted in Zero Dark Thirty, at the heart of the documented torture practices were sensory deprivation, sexualized humiliation and animalism. According to official military reports on the Abu Ghraib ‘torture scandal’, cismale prisoners were ‘sodomized’ by prison guards and forced to ‘masturbate themselves’ and/or ‘perform indecent acts on each other’, such as simulating and/or performing oral or anal ‘sex’ on fellow male prisoners. The guards also arranged naked cismale prisoners in a human pyramid in such a way ‘that the bottom guys [sic] penis would touch the guy on tops [sic] butt’ and called them names such as ‘gay’ (cited in Richter-Montpetit, 2007). Many of these ‘homosexual acts’ = ‘indecent acts’ were photographed and/or videotaped, promising ‘in a context of great fear and vulnerability … to capture and fix, in the stopped-time of the image, the soldiers’ fleeting moments of grand omnipotence’ (McClintock, 2009: 60). Moreover, the soldiers stripped detained cismen and forced them to wear ‘women’s’ panties, often on their heads and, as shown in Zero Dark Thirty, had non-transwomen such as agent Maya gaze at and mock their naked bodies. These so-called pride-and-ego-down techniques have been used across US-run detention centres and have been reported as late as April 2010 (Hajjar, 2011c).

These violences are grounded in racialized scripts that constitute these bodies and spaces as violable and disposable, in particular through discourses of sexuality. The use of sexualized violence against colonized bodies of all genders, casting these populations and their land as rapeable, has been and continues to be a critical technology of colonial governmentality (Smith, 2005). In the wake of 9/11, gender and sexuality are once again critical sites in the struggle to defend civilization itself from racial–sexual terrorism (Haritaworn et al., 2008; Puar, 2007) in complex and at times contradictory ways. While both Bush and Obama (during his first term) staunchly defended the Defense of Marriage Act – though Obama did so without Bush’s vitriol – the USA and other liberal states have framed the violation of women’s and gay rights as a reason to fight wars in the context of both Afghanistan and Iraq, as well as when threatening military action against Iran.

The evocation of gender and sexual equality has come to serve liberal states as a main criterion for measuring and assuring themselves of their level of civilization against the savagery and sexual backwardness of both the terrorist Other abroad and their ‘own’ migrant and/or people-of-colour populations (Haritaworn et al., 2008). It is against the backdrop of these complex reconfigurations of sexual and gender regimes that Orientalist discourses narrate sexualized violence by ciswomen against cismen, as well as ‘homosexual sex’ and its simulation, as particularly if not only humiliating for Arab/Muslim/Brown men. The performance of torture along a misogynist, homophobic and transphobic script casts the tortured bodies as racially queer: simultaneously sexually repressed and perverted, the torture script gives rise to the homophobic misogynist fundamentalist and implicitly constructs the USA as exceptionally feminist and gay-friendly (Puar, 2007; Puar and Rai, 2002; Richter-Montpetit, 2007). This production of the Muslim terrorist threat through the performance of capture and other penal techniques thereby helps shore up also the domestic settler racial–sexual order and its underpinning prison-industrial complex that disproportionally feeds on anti-Black, anti-Latino and anti-Indigenous racial logics and bodies (see also Agathangelou et al., 2008; Roberts, 2008; Wacquant, 2002).

As explored elsewhere (Richter-Montpetit, 2007), the inscription of the terrorist’s racialized difference is articulated also through discourses of animalism. There are numerous reports and pictures of prisoners being forced to crawl and to bark. This logic of equating the terrorist Other with animals also operated in the speeches of President Bush. On several occasions, the latter announced that he would ‘smoke out the terrorists’ dwelling in the caves of the ‘dark corners of the earth’. Animals in this discourse are considered wild and dangerous and need to be tamed or civilized with force. The most domesticated animal in the Euro-American context is the dog. ¹¹ Yet even when dogs are domesticated, they are still dogs. Because racialized bodies are cast as closer to animals and hence as more immune to pain, they are constructed as requiring forms of corporeal punishment different from those required by non-brutish populations – for their own good. In one of the court martials, a witness testified that when he saw ‘two naked detainees, one masturbating to another kneeling with its [sic] mouth open’, one of the perpetrators, former civilian prison guard Staff Sergeant Ivan L. Frederick II, told him, ‘Look what these animals do when you leave them alone for two seconds’ (Hersh, 2004, my emphasis). These performances of capture and domination not only animalize the captured, but also allow the petty sovereign to stage the libidinal economies or erotics of racism, including the pleasures both of enacting queer intimacies otherwise not sanctioned (Razack, 2008: 19) and of feeling interpellated as the ‘privileged manager’ (Kuntsman, 2009: 124) of the settler-colonial nation and civilization itself (Richter-Montpetit, 2007).

While the ability to perform torture on somebody is commonly read as a sign of the omnipotence of power, it also indicates the limits of such power, for it is on account of the vulnerability, permeability, contestability and hence precarity of power that torture is being used in the first place (Scarry, 1985: 27). State-administered practices of bodily violence are hence simultaneously a display of power and a reminder that the state’s rule is contested and hence at risk. Furthermore, contrary to common understandings of torture in which prisoners are seen as losing their voices (including Scarry’s brilliant meditation on The Body in Pain), prisoners can and do use the torture ‘stage’ as a political field and affect their torture/r:

The body made into a political artifact by an embodied act of violence is no less a political agent than the author(s) of violence. The very act of violence invests the body with agency. The body, altered by violence, reenacts other altered bodies dispersed in time and space; it also reenacts political discourse and even the movement of history itself. (Feldman, 1991: 7)

Experienced prisoners learn to manage the interrogation through managing their body and other practices that undermine their domination, turning the interrogation session into ‘a shared political arena’ (Feldman, 1991: 138–139), however highly unequal. Ways in which prisoners typically seek to gain a sense of control over their suffering include controlling when they get beaten through provocation and naming interrogation techniques (Feldman, 1991: 140–142).

According to Erik Saar, a former Guantánamo Bay military intelligence linguist, prisoners ‘loved to stir things up’ (Saar and Novak, 2005: 70). When a prisoner objected to certain practices – for instance, the inspection of his Koran by a non-Muslim soldier – he would start chanting ‘Allah al-Akbar’ and the entire cellblock would join him. The prisoners also spat at guards, and doused them with water, urine or faeces (Saar and Novak, 2005: 71). Prisoners in Guantánamo Bay and Abu Ghraib reportedly responded to their detention also by smearing their faeces onto walls (Rose, 2004: 66) or their own bodies (McKelvey, 2007: 100). ‘These disturbances were a way for them to fight their oppressors – and sometimes a pure source of entertainment. Their capacity to create tension in the camp was great, and they knew it’ (Saar and Novak, 2005: 71). As the prison regime seeks to project total control over the inmates, in particular in the context of ‘softening them up’ for interrogation, making use of one’s faeces is a powerful way of enacting control over one’s body and getting back at one’s tormenters. Prisoner Hai Ismale Abdul Hamid, who was led on a leash like a dog by Lynndie England, for instance, was notorious for smearing faeces on himself (Saar and Novak, 2005: 71). Another common response among Abu Ghraib and Guantánamo prisoners is to call their guards Nazis (Rose, 2004: 68), connecting their own treatment in US custody to the racist annihilation politics of another modern White state. Furthermore, prisoners engage in hunger strikes and non-cooperation campaigns, refusing to attend interrogation sessions, shower or go out for their exercise period (Rose, 2004: 78). The latest reported mass hunger strike was happening in March 2013 at the time of this writing, to protest Obama’s broken promise to shut down Guantánamo Bay.

Conclusion

With a focus on the US carceral regime in the War on Terror, this article explores the social relations and structures of feelings that make torture and other seemingly ineffective and absurd carceral practices possible and desirable as technologies of security. Adding to the existing international relations scholarship on Orientalism as a central racial–sexual logic in the operations of the War on Terror, the article suggests that the torture memos’ disavowal of carceral suffering short of death, the denial of the prisoner’s possession of bodily interiority and thus sovereignty, follows the racial–sexual grammar of chattel slavery and its aftermath. This genealogy does not suggest an analogy with anti-Black racism and suffering, but opens up our analyses towards a more comprehensive understanding of carcerality and other modalities of security in the War on Terror. Against the exceptionalism of conceiving of these violences as ‘cruel and unusual’, ‘abuse’ or ‘human rights violations’ (Agathangelou et al., 2008: 136; Rodríguez, 2006: 47), this genealogy indicates the fundamental role of these security practices and their underpinning gendered racial–sexual grammars of legitimate suffering for the consolidation of the sovereign authority of the US settler empire and the universal liberal project of security, and thereby discloses the liberal project as particular and exposes its contingence on violence.

The article further argues that those carceral security practices are key technologies of gendered and sexualized race-making in this era of ‘post-racial triumph’ (HoSang and LaBennett, 2012: 5). As discussed, carceral technologies of security do not simply discipline the individual body, but produce and regulate populations by producing interlocking (non)normative classed national, racial, gender and sexual social formations and the differential distribution of vulnerability and security. The gendered racial–sexual production of the Muslim terrorist and the civilizational Whiteness of the torturer (and of those invited to feel cared for by the latter’s vital acts of national and civilizational security) through the performance of capture and cruel and inhuman penal techniques helps restore – and eroticizes – state authority and the display of state power in the wake of the USA’s most profound national security crisis since the attack on Pearl Harbor. This ‘defence’ of the global population from the racial–sexual threat of Islamic terrorism shores up the racial–sexual order ¹² of the settler-colonial homeland, in particular one of its central pillars, the prison-industrial complex. Contrary, then, to recent debates on the shift away from sovereign power towards a society of security, the law continues to be mobilized as a technology of security, playing a significant role in the management of life and death at the current juncture.